author: Per Curiam.

text:
    [658 NE2d 718, 634 NYS2d 672]
    The People of the State of New York, Appellant, v Michael J. Demperio, Respondent.
    Argued October 24, 1995;
    decided November 29, 1995

      POINTS OF COUNSEL

      William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (John B. LaParo, James P. Maxwell and Gordon J. Cuffy of counsel), for appellant.
    I. Vehicle and Traffic Law § 1193 (2) (b) (3) is not unconstitutionally vague. (People v Byron, 11 NY2d 64; Matter of McGee v Korman, 70 NY2d 225; Wiggins v Town of Somers, 4 NY2d 215; Matter of Pratt v Melton, 72 AD2d 887, 51 NY2d 837; People v Cruz, 48 NY2d 419; People v New York Trap Rock Corp., 57 NY2d 371; People v Watson, 162 AD2d 1015; Matter of Hauptman v New York State Dept. of Motor Vehicles, 158 AD2d 600.) II. The lower court erred by failing to notify the Attorney-General before ruling on the constitutionality of Vehicle and Traffic Law § 1193 (2) (b) (3). (Matter of McGee v Korman, 70 NY2d 225; Lanz v Feola, 181 AD2d 1053; Jefferds v Ellis, 122 AD2d 595, 132 AD2d 321, 75 NY2d 708.)
    Respondent, precluded.

      Dennis C. Vacco, Attorney-General, Albany (John McConnell, Victoria A. Graffeo and Peter H. Schiff of counsel), in his statutory capacity under Executive Law § 71.
    The County Court erroneously held that Vehicle and Traffic Law § 1193 (2) (b) (3) is unconstitutionally vague. (People v Bright, 11 NY2d 376; Defiance Milk Prods. Co. v Du Mond, 309 NY 537; People v Epton, 19 NY2d 496, 390 US 29; Matter of Van Berkel v Power, 16 NY2d 37; People v Shakun, 251 NY 107; People v Mobil Oil Corp., 48 NY2d 192; People v Tanner, 128 NY 416; People v Evans, 79 Misc 2d 131; People v Del Principe, 31 Misc 2d 428.)
   OPINION OF THE COURT

Per Curiam.

This appeal calls into question the constitutionality of Vehicle and Traffic Law § 1193 (2) (b) (3). Considering the presumption of constitutionality together with the clear language of the subsection, we reverse County Court’s order declaring the statute unconstitutionally vague.

Defendant was stopped while driving his car in the Town of Geddes on September 19, 1992, and charged with aggravated unlicensed operation of a motor vehicle in the second degree under Vehicle and Traffic Law § 511 (2) (a). That statute is violated when persons operate a motor vehicle on a public highway while knowing or having reason to know that their license is suspended, revoked or otherwise withdrawn because of a previous conviction of driving under the influence of alcohol or drugs. Defendant had been convicted of driving while intoxicated on September 18, 1990, and, as he had also been convicted the prior year of driving while ability impaired, his license was revoked under the recidivist statute (Vehicle and Traffic Law § 1193 [2] [b] [3]), which prescribes under the heading "Revocations” that a license shall be revoked for the following minimum period:

"(3) Driving while intoxicated or while ability impaired by drugs; prior offense. One year, where the holder is convicted of [driving while under the influence of alcohol or drugs] within 10 years of a conviction for [driving while under the influence of alcohol or drugs]” (Vehicle and Traffic Law § 1193 [2] [b] [3], citing Vehicle and Traffic Law § 1192).

On April 17, 1991, defendant’s license was revoked for a minimum of one year, and he had made no application to have it reinstated at the time in issue.

Defendant argued, and both Town Court and County Court agreed, that Vehicle and Traffic Law § 1193 (2) (b) (3) is unconstitutionally vague in that it does not inform violators that they must make a new application in order to have a revoked license reinstated.

Combining the presumption of constitutionality that attaches to enactments of a coequal branch of government (People v Bright, 71 NY2d 376, 382) with the clarity of the subsection as a whole, we conclude that the lower courts erred. The word "revoke” — meaning to annul, void or cancel— is commonly understood as having a core element of permanence. Moreover, any possible doubt as to the meaning of the word as used in Vehicle and Traffic Law § 1193 (2) (b) (3) would be laid to rest by the immediately following paragraph (not cited in the opinion of either lower court):

"(c) Reissuance of licenses; restrictions. (1) Except as otherwise provided in this paragraph, where a license is revoked pursuant to paragraph (b) of this subdivision, no new license shall be issued after the expiration of the minimum period specified in such paragraph, except in the discretion of the commissioner.”

This statute alone gave defendant reason to know that upon revocation of his license, a new license application was required.

Accordingly, the order of County Court should be reversed, the accusatory instrument reinstated, and the case remitted to the Justice Court for further proceedings on the accusatory instrument.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in Per Curiam opinion. Order reversed, etc.

       Additionally, as the Attorney-General points out, the Department of Motor Vehicles sends the following written notices (form C-40) to persons whose drivers’ licenses have been suspended or revoked because of alcohol-related offenses: "If your license was revoked, you must apply to the Department of Motor Vehicles for a new license.”


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    [658 NE2d 989, 635 NYS2d 116]
    In the Matter of James W. Ransom et al., Appellants, v St. Regis Mohawk Education and Community Fund, Inc., et al., Respondents.
    Argued September 19, 1995;
    decided October 24, 1995

      POINTS OF COUNSEL

      Harder Silber and Bergan, Albany (George W. Harder of counsel), for appellants.
    I. Petitioners have exhausted all administrative remedies available to them. (Matter of Kurk v Medical Socy., 46 Misc 2d 790, 24 AD2d 897, 18 NY2d 928; Wounded Knee v Andera, 416 F Supp 1236.) II. This Court has concurrent jurisdiction with any tribal court that may exist. (Matter of Jimerson v Halftown Estate, 22 AD2d 417; D’Avino v Trachtenburg, 149 AD2d 399; Matter of Kupersmith v Public Health Council, 63 NY2d 904; Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88; Matter of Gray v Canisius Coll., 76 AD2d 30; Matter of Weidenfeld v Keppler, 84 App Div 235, 176 NY 562; Matter of Auer v Dressel, 306 NY 427.) III. The doctrine of sovereign immunity does not insulate the St. Regis Mohawk Education and Community Fund and its directors from this Court’s jurisdiction. (Terrance v Gray, 165 App Div 636; Mt. Pleasant v Gansworth, 150 Misc 584, 242 App Div 675; People v Anderson, 137 AD2d 259; Snow v Quinault Indian Nation, 709 F2d 1319, 467 US 1214; United States v Wheeler, 435 US 313; Namekagon Dev. Co. v Bois Forte Reservation Hous. Auth., 395 F Supp 23, 517 F2d 508; John v Hoag, 131 Misc 2d 458; Larson v Domestic & Foreign Corp., 337 US 682; Santa Clara Pueblo v Martinez, 436 US 49; Harlow v Fitzgerald, 457 US 800.) IV. Sovereign immunity is not an effective bar to the type of relief petitioners seek. (Pueblo of Taos v Andrus, 475 F Supp 359; Bryan v Itasca County, 426 US 373; Oneida Indian Nation v County of Oneida, 414 US 661; Oliphant v Suquamish Indian Tribe, 435 US 191; Washington v Confederated Tribes, 447 US 134; Moe v Salish & Kootenai Tribes, 425 US 463; Puallop Tribe v Washington Game Dept., 433 US 165.)

      John A. Piasecki, Hogansburg, and Vaughn N. Aldrich for respondents.
    I. The fact findings of the courts below is conclusive. II. Sovereign immunity has not been waived. (Santa Clara Pueblo v Martinez, 436 US 49; American Indian Agrie. Credit Consortium v Standing Rock Sioux Tribe, 780 F2d 1374;
      Ramey Constr. Co. v Apache Tribe, 673 F2d 315; Weeks Constr. v Oglala Sioux Hous. Auth., 797 F2d 668.) III. New York courts lack jurisdiction. (Weeks Constr. v Oglala Sioux Hous. Auth., 797 F2d 668; National Farmers Union Ins. Cos. v Crow Tribe, 468 US 1315; People v Anderson, 137 AD2d 259.)

      Pamela S. Fahey, Oneida, and William H. Gelles, III, for Oneida Indian Nation, amicus curiae.

    I. Courts must be vigilant to protect the sovereignty of Indian Nations. (Matter of Patterson v Council of Seneca Nation, 245 NY 433; Oklahoma Tax Commn. v Potawatomi Tribe, 498 US 505; California v Cabazon Band of Mission Indians, 480 US 202; Oneida Indian Nation v County of Oneida, 414 US 661; McClanahan v Arizona State Tax Commn., 411 US 164.) II. The use of corporate entities is an essential aspect of sovereignty. (Santa Clara Pueblo v Martinez, 436 US 49; Namekagon Dev. Co. v Bois Forte Reservation Hous. Auth., 395 F Supp 23, 517 F2d 508; Weeks Constr. v Oglala Sioux Hous. Auth., 797 F2d 668; Department of Empl. v United States, 385 US 355; M’Culloch v State of Maryland, 4 Wheat [17 US] 316; People ex rel. Buffalo & Fort Erie Pub. Bridge Auth. v Davis, 277 NY 292; Mathewson v New York State Thruway Auth., 9 NY2d 788; Benz v New York State Thruway Auth., 9 NY2d 486.) III. Where an Indian entity is under direct governmental control and concerned with sovereign matters, it should be protected by the Indian Nation’s sovereign immunity. (Maryland Cas. Co. v Citizens Natl. Bank, 361 F2d 517; Oklahoma Tax Commn. v Potawatomi Tribe, 498 US 505.) IV. The cases in which an Indian entity has not been granted sovereign immunity are distinguishable from the case at bar. (Navajo Tribe v Bank of N. M., 700 F2d 1285; Kovats v Rutgers, State Univ., 822 F2d 1303; Altheimer & Gray v Sioux Mfg. Corp., 983 F2d 803; Rosebud Sioux Tribe v Val-U Constr. Co., 50 F3d 560.) V. Sovereign immunity can never be waived by implication. (Santa Clara Pueblo v Martinez, 436 US 49; American Indian Agrie. Credit Consortium v Standing Rock Sioux Tribe, 780 F2d 1374; Evans v McKay, 869 F2d 1341; Pan Am. Co. v Sycuan Band of Mission Indians, 884 F2d 416; Tuveson v Florida Governor’s Council on Indian Affairs, 734 F2d 730.)
   OPINION OF THE COURT

Titone, J.

The District of Columbia Nonprofit Corporation Act and New York’s Not-For-Profit Corporation Law both empower corporate entities to "sue and be sued.” We are asked in this case to hold that reference to the District of Columbia Nonprofit Corporation Act in the charter of a tribal social service agency incorporated thereunder, along with that corporation’s qualification to do business in New York, constitutes a waiver of tribal sovereign immunity. We hold that reference in the corporate charter to statutory authority to sue and be sued, standing alone, neither constitutes an express and unequivocal waiver of sovereign immunity nor subjects the tribal entity to the jurisdiction of New York’s courts.

I

Petitioners James W. Ransom, Wesley Laughing, Brian D. Cole and Sakakohe Pembleton are members of the St. Regis Mohawk Tribe (Tribe) employed by respondent St. Regis Mohawk Education and Community Fund (Fund). Respondent Fund is a nonprofit corporation organized in 1982 pursuant to the District of Columbia Nonprofit Corporation Act to provide educational, health care, social and historical services to residents of the St. Regis Mohawk Reservation. Respondents L. David Jacobs, Norman Tarbell and Lincoln C. White are directors of the Fund, and are also the three elected Tribal Chiefs of the St. Regis Mohawk Tribe. On October 16, 1990, respondent applied for authorization to do business in the State of New York.

The Fund’s articles of incorporation provide that "[t]he corporation may exercise all power or authority granted to it under the District of Columbia Nonprofit Corporation Act or otherwise, including, but not limited to, the power to accept donations or money or property, and the power to own or lease property, real or personal.” The Nonprofit Corporation Act states that a corporation formed thereunder "shall have power * * * [t]o sue and be sued, complain and defend, in its corporate name.” None of the corporate certificates contain any express language that the Tribe waives its sovereign immunity.

In 1990, petitioners were suspended or discharged from their various administrative positions with the Fund. Respondent Fund concedes that the grievance procedures outlined in the Tribe’s employment policy and procedures manual were not followed when petitioners sought internal disciplinary review with the appropriate tribal authority.

Petitioners commenced this CPLR article 78 proceeding to challenge their dismissal from employment, claiming they were denied due process when discharged in violation of the Tribe’s Personnel Policy and Procedure Manual and are entitled to reinstatement and back pay. Respondents did not answer, but claimed in responsive affidavits that, because the Fund was an agency of the Tribe, it enjoyed tribal sovereign immunity from this suit.

Supreme Court rejected the sovereign immunity defense, granted the petition, and ordered petitioners’ reinstatement with back pay. The Appellate Division reversed and remitted to Supreme Court for a factual determination of whether petitioners were employees of the Tribe or the Fund, and, if the latter, whether the Fund enjoyed sovereign immunity. On remand, Supreme Court concluded that the Fund had waived its sovereign immunity by virtue of its incorporation and subsequent qualification to do business in New York. Thus, the court adhered to its original determination that respondents improperly dismissed petitioners from employment, and that petitioners were entitled to the requested relief.

The Appellate Division reversed and dismissed the petition. The Court held that the Fund was an arm of the tribal government and possessed attributes of tribal sovereignty that precluded suit against it absent a waiver of immunity. The Court then ruled that such a waiver must be unequivocally expressed, and that the generalized incorporation of corporate powers did not satisfy this waiver standard. We now affirm.

II

That Indian tribes possess common-law sovereign immunity from suit akin to that enjoyed by other sovereigns is part of this Nation’s long-standing tradition (Santa Clara Pueblo v Martinez, 436 US 49, 58; Matter of Patterson v Council of Seneca Nation, 245 NY 433). Tribal subagencies and corporate entities created by the Indian Nation to further governmental objectives, such as providing housing, health and welfare services, may also possess attributes of tribal sovereignty, and cannot be sued absent a waiver of immunity (see, Weeks Constr. v Oglala Sioux Hous. Auth., 797 F2d 668 [8th Cir 1986]; Namekagon Dev. Co. v Bois Forte Reservation Hous. Auth., 395 F Supp 23 [D Minn 1974], affd 517 F2d 508 [8th Cir 1975]). Although no set formula is dispositive, in determining whether a particular tribal organization is an "arm” of the tribe entitled to share the tribe’s immunity from suit, courts generally consider such factors as whether: the entity is organized under the tribe’s laws or constitution rather than Federal law; the organization’s purposes are similar to or serve those of the tribal government; the organization’s governing body is comprised mainly of tribal officials; the tribe has legal title or ownership of property used by the organization; tribal officials exercise control over the administration or accounting activities of the organization; and the tribe’s governing body has power to dismiss members of the organization’s governing body (see, Vetter, Doing Business with Indians and the Three ”S”es: Secretarial Approval, Sovereign Immunity and Subject Matter Jurisdiction, 36 Ariz L Rev 169, 176 [1994]). More importantly, courts will consider whether the corporate entity generates its own revenue, whether a suit against the corporation will impact the tribe’s fiscal resources, and whether the subentity has the "power to bind or obligate the funds of the [tribe]” (Altheimer & Gray v Sioux Mfg. Corp., 983 F2d 803, 809 [7th Cir 1993], cert denied — US —, 114 S Ct 621). The vulnerability of the tribe’s coffers in defending a suit against the subentity indicates that the real party in interest is the tribe.

The conclusion that respondent Fund is a tribal entity which enjoys sovereign immunity from suit is fully supported by the record. The Fund was established to enhance the health, education and welfare of Tribe members, a function traditionally shouldered by tribal government. Additionally, the Fund received its resources from the Tribe, and the Tribe was designated by the Fund as the recipient of its funds and services. Critically, under its by-laws, the Fund’s governing body may only be comprised of elected Chiefs of the Tribe. Thus, the Fund’s provision of social services on behalf of and under the direct fiscal and administrative control of the Tribe renders it an entity so closely allied with and dependent upon the Tribe that it is entitled to the protection of tribal sovereign immunity.

Ill

The remaining and more difficult question here is whether New York courts have jurisdiction over this action against the Fund. Having sovereign status, the tribal entity is not subject to the jurisdiction of the New York courts without its consent. Thus, the pivotal inquiry is whether the Fund has waived its sovereign immunity and submitted to suit in our courts.

The sovereignty of an Indian Nation may be waived by the tribe itself or by an act of Congress (Oklahoma Tax Commn. v Potawatomi Tribe, 498 US 505 [1991]), which has "superior and plenary control” over Indians (Santa Clara Pueblo v Martinez, 436 US 49, 58 [1978], supra). Because preserving tribal resources and tribal autonomy are matters of vital importance, the United States Supreme Court has repeatedly stated that a waiver of tribal sovereign immunity " ' "cannot be implied but must be unequivocally expressed” ’ ” (id., quoting United States v King, 395 US 1, 4). Importantly, to be valid, waivers of tribal sovereign immunity "must be traceable to an official government action (statute, ordinance, resolution) that expressly and unequivocally waives immunity or empowers particular officers to waive immunity” (Vetter, Doing Business with Indians and the Three "S”es: Secretarial Approval, Sovereign Immunity and Subject Matter Jurisdiction, 36 Ariz L Rev 169, 193). Additionally, waivers of immunity "are to be strictly construed in favor of the Tribe” (Rupp v Omaha Indian Tribe, 45 F3d 1241, 1245 [8th Cir 1995]). In fact, while the United States Supreme Court "has expressed its protectiveness of tribal sovereign immunity by requiring that any waiver be explicit, it has never required the invocation of 'magic words’ stating that the tribe hereby waives its sovereign immunity” (Rosebud Sioux Tribe v Val-U Constr. Co., 50 F3d 560, 563 [8th Cir 1995], cert denied — US —, 116 S Ct 78).

Waivers of sovereign immunity have been accomplished in corporate charters through a variety of formulations that commonly include terms expressing the corporation’s amenability to suit and the tribe’s intent that certain matters be resolved in a particular judicial or arbitral forum (see, e.g., Namekagon Dev. Co. v Bois Forte Reservation Hous. Auth., 517 F2d 508 [8th Cir 1975], supra). For example, the Seventh Circuit Court of Appeals determined that the requisite unequivocal expression of a waiver was accomplished by the Sioux Indians in Altheimer & Gray v Sioux Mfg. Corp. (983 F2d 803, 812 [1993], supra). In that case, the Sioux Tribe passed a tribal law and order code section providing that sovereign immunity may be limited by a tribal entity’s charter. In turn, the charter of a tribal corporation engaged in the manufacturing of military supplies stated that sovereign immunity " 'is hereby expressly waived with respect to any written contract entered into by the Corporation.’ ” Additionally, the terms of a letter of intent concerning a specific corporate contract stated that the tribe and its corporation agreed to " 'waive all sovereign immunity in regards to all contractual disputes’ ” and that all parties "agree to submit to the venue and jurisdiction of the federal and state courts located in the State of Illinois.” Similarly, in Rosebud Sioux Tribe v Val-U Constr. Co. (50 F3d 560, supra), the Eighth Circuit Court of Appeals held that the inclusion of a "sue and be sued” clause within a tribal corporation’s charter, plus an arbitration clause in a contract executed thereunder constituted an express waiver of sovereign immunity and submission to an arbitral forum. Waiver has also been found where the tribal entity affirmatively subjected itself to the jurisdiction of the Federal District Court by initiating a lawsuit, and requesting that the court consider the asserted counterclaims (Rupp v Omaha Indian Tribe, 45 F3d 1241, 1244 [8th Cir 1995], supra).

By contrast, in American Indian Agric. Credit Consortium v Standing Rock Sioux Tribe (780 F2d 1374 [1985], supra), the Eighth Circuit concluded that a tribal resolution authorizing the securing of a loan coupled with language in a promissory note referring to default remedies, the right to charge interest "in addition to such other and further rights and remedies provided by law”, and a choice of District of Columbia law, together failed to satisfy Santa Clara Pueblo’s requirement of an express and unequivocal waiver, notwithstanding the fact that a waiver of immunity from suit could easily be implied from that collective language (id., at 1377). According to the Eighth Circuit, the missing link in Standing Rock was that the tribe "did not explicitly consent to submit any dispute over repayment on the note to a particular forum, or to be bound by its judgment” (id., at 1380-1381).

Petitioners here urge that the Tribe expressed its intent to waive its sovereign immunity by (1) including a provision in the Fund’s articles of incorporation which states that "[t]he corporation may exercise all power or authority granted to it under the District of Columbia Nonprofit Corporation Act or otherwise, including, but not limited to, the power to accept donations or money or property, and the power to own or lease property, real or personal,” and (2) qualifying to do business in New York as a foreign corporation. The District of Columbia Nonprofit Corporation Act in turn lists as a general power of a corporation formed thereunder the power to "sue and be sued” (DC Nonprofit Corporation Act § 29-505). New York’s Not-For-Profit Corporation Law provides that a foreign corporation authorized to do business in the State designates the Secretary of State as its agent for service of process (NPCL 1304) and "shall have power in furtherance of its corporate purposes to "sue and be sued in all courts and to participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise” (N-PCL 202 [a] [2]). Petitioners claim that by incorporating and subjecting the entity to the provisions of both the New York Not-For-Profit Corporation Law and the District of Columbia Nonprofit Corporation Act, the Fund is automatically amenable to suit in our courts. This claim does not satisfy the high threshold for a valid waiver of immunity.

Here, the Tribe has not explicitly consented in the Fund’s charter, or by any ordinance or resolution, to waive its sovereign immunity, submit corporate disputes to the jurisdiction of our courts or be bound by such judgment. Critically, as stated in the related context of State waivers of Eleventh Amendment immunity from suit, the "sue and be sued” language contained in State corporation statutes means "only that the entity has the status and capacity to enter our courts, and does not signify a waiver of sovereign immunity against suit” (Howard v Liberty Mem. Hosp., 752 F Supp 1074, 1077 [SD Ga 1990]; see also, Tuveson v Florida Governor’s Council on Indian Affairs, 734 F2d 730, 734 [11th Cir 1984] [not-for-profit incorporation of State agency under statutory scheme which permits corporation to sue and be sued is not a sufficiently explicit waiver of the State’s Eleventh Amendment sovereign immunity]). Thus, the mere fact that a tribal corporation, by statute, has designated an agent for service of process or is empowered to "sue and be sued” does not automatically subject that corporate entity to any court’s jurisdiction where jurisdiction is otherwise lacking. In other words, the general powers provisions of the corporation statutes are not self-executing, and express invocation of the power to sue and be sued and submission to a particular forum by official tribal action is required.

Under this line of reasoning, reference in the Fund’s corporate charter to the statutory power to sue and be sued contained in the D.C. and New York nonprofit corporation laws did nothing more than recognize the Fund’s status as an entity with the capacity to enter our courts. However, quite unlike the expressions of waiver in Rosebud (supra), Altheimer (supra) and Namekagon (supra), the St. Regis Mohawk Tribe never explicitly stated in its charter or otherwise that it would invoke that power, waive its immunity and submit to the jurisdiction of our courts to resolve corporate matters. Thus, the requirement of an express and unequivocal waiver of tribal sovereign immunity remains unsatisfied by mere incorporation by reference in the charter of the statutory power to sue and be sued (cf., Altheimer & Gray v Sioux Mfg. Corp., 983 F2d 803, 812, supra).

IV

Petitioners contend that even if the corporation was cloaked with the sovereign’s veil of immunity from suit, the individual respondents Jacobs, Tarbell and White acted outside the scope of their authority by failing to afford petitioners the disciplinary process outlined in the Tribe’s Personnel Policy and Procedure Manual and thus were stripped of any immunity they may have possessed. Because respondents’ acts, at most, involve the erroneous exercise of their delegated duties, their acts are not ultra vires, and, as tribal officials acting in their representative capacity and within the scope of their authority, they remain protected by the sovereign immunity enjoyed by the Fund (see, Hardin v White Mtn. Apache Tribe, 779 F2d 476, 479 [9th Cir]; Snow v Quinault Indian Nation, 709 F2d 1319, 1321 [9th Cir 1983], cert denied 467 US 1214).

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

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Cipakick concur.

Order affirmed, with costs.

      . Respondent Fund was originally incorporated under the name "St. Regis Mohawk Tribal Council, Inc.” Several months later, the corporation’s name was changed to its present name.

      . We initially note that petitioners’ argument that the doctrine of sovereign immunity is not applicable to the St. Regis Mohawk Tribal Council, nor to the derivative Fund because the former body is a creature of and governed by New York statute, is similar to the claim rejected by this Court in Matter of Patterson v Council of Seneca Nation (245 NY 433, supra). In Patterson, we stated that, notwithstanding the enactment of provisions by this State’s Legislature to assist the Seneca Indians in administering the affairs of government (see, Indian Law art 4), the relevant portions of the New York Indian Law did "not otherwise make applicable to Indians either the common law or statute law of the State,” and did "not abrogate Indian customs or usages” (Patterson, supra, at 445). Thus, the Court reached the "inescapable” conclusion "that the Seneca tribe remains a separate nation; that its powers of self-government are retained with the sanction of the State; that the ancient customs and usages of the nation, except in a few particulars, remain, unabolished, the law of the Indian land; that in its capacity of a sovereign nation the Seneca Nation is not subservient to the orders and directions of the courts of New York State” (id.). So too, here, the enactment of article 8 of the Indian Law, which speaks generally to the powers of tribal officials, the conduct of elections, the allotment of lands and the jurisdiction of the tribal council to determine disputes (see, Indian Law art 8), does not divest the Tribe of its sovereign immunity, but rather advances the desired attribute of tribal self-gavernonce.

      . Petitioners seek to predicate the jurisdiction of the New York courts on 25 USC § 233 and New York’s Indian Law § 5, which similarly grant our courts jurisdiction in civil actions "between Indians or between one or more Indians and any other person or persons.” However, those provisions govern private disputes between individual Indians, not disputes between an Indian and a sovereign tribe (see, People v Anderson, 137 AD2d 259). Because the Fund is to be treated as the Tribe itself, it is not "an Indian;” nor is it a "person,” notwithstanding the fact that it has incorporated.

      . Although the United States Supreme Court has not directly addressed the point, at least one Federal Circuit Court of Appeals has ruled that regardless of whether the waiver is externally imposed by Congress or by an act of the tribe itself, there is no distinction in the requirement of an explicit and unequivocal waiver (see, American Indian Agric. Credit Consortium v Standing Rock Sioux Tribe, 780 F2d 1374,1377 [8th Cir 1985]).

      . In Namekagon Dev. Co. v Bois Forte Reservation Hous. Auth., (517 F2d 508 [8th Cir 1975], supra), a waiver of sovereign immunity was effectuated by the tribal council’s inclusion of a "sue and be sued” provision within a tribal ordinance creating the Housing Authority. The clause stated that "[t]he Council hereby gives its irrevocable consent to allowing the Authority to sue and be sued in its corporate name, upon any contract, claim or obligation arising out of its activities under this ordinance and hereby authorizes the Authority to agree by contract to waive any immunity from suit which it might otherwise have; but the Band shall not be liable for the debts or obligations of the Authority, except insofar as expressly authorized by this ordinance” (517 F2d, at 509 [emphasis added]). Notably, the subject matter jurisdiction of the Federal courts over this action apparently was not contested on appeal.


author: Titone, J. Bellacosa, J. Levine, J.

text:
    [658 NE2d 996, 635 NYS2d 123]
    The People of the State of New York, Respondent, v Lesly Joseph, Appellant.
    Argued September 20, 1995;
    decided October 31, 1995

      POINTS OF COUNSEL

      Michael C. Taglieri, Philip L. Weinstein and Daniel L. Greenberg, New York City, for appellant.
    The Court below erred when it affirmed the trial court’s refusal to sanction the People for the destruction of Rosario material on the grounds (a) that appellant had suffered no prejudice and (b) that the recitation by a police witness that the material had been copied before destruction rendered the purported copy a duplicative equivalent of the destroyed material. (People v Banch, 80 NY2d 610; People v Martinez, 71 NY2d 937; People v Rosario, 9 NY2d 286; People v Ranghelle, 69 NY2d 56; People v Wallace, 76 NY2d 953; People v Gilligan, 39 NY2d 769; People v Malinsky, 15 NY2d 86; People v Consolazio, 40 NY2d 446; People v Young, 79 NY2d 365.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Linda Cantoni and Steven J. Chananie of counsel), for respondent.
    Officer Wynne’s testimony established that the information in his reports was the duplicative equivalent of that in the destroyed envelopes; in any event, defendant suffered no prejudice because the information on the envelopes was irrelevant to the issues at trial. (People v Rosario, 9 NY2d 286; People v Consolazio, 40 NY2d 446; People v Banch, 80 NY2d 610; People v Burgess, 244 NY 472; People v Serrando, 184 AD2d 1094; People v Stepteau, 178 AD2d 376, 81 NY2d 799; People v Winthrop, 171 AD2d 829; People v Greany, 185 AD2d 376; People v Briggs, 188 AD2d 1001; People v Dunn, 185 AD2d 54.)
   OPINION OF THE COURT

Titone, J.

A witness’s pretrial statements must generally be disclosed to the defense before opening argument (see, CPL 240.45), but the failure to make such timely disclosure will not lead to any sanctions if the undisclosed matter is the "duplicative equivalent” of material that has previously been disclosed. The question presented here is whether the latter principle may be applied when a document subject to Rosario disclosure has been destroyed and a testimonial reconstruction is required to establish its contents. Concluding that the fallibility of human memory makes the necessary flawless reconstruction all but impossible, we hold that a document that has been destroyed can never be deemed the "duplicative equivalent” of one that exists and remains available for inspection.

At about 10:00 p.m. on October 2, 1990, a narcotics enforcement officer, Robert Wasson, who was stationed on the roof of a nearby apartment building, observed a series of transactions that he interpreted as drug sales. According to the trial evidence, the officer watched through binoculars as three separate individuals approached the same individual and exchanged money for what appeared to be vials of cocaine. After each transaction, Wasson radioed his arrest team. One member of this team, an Officer Wynne, arrested one of the buyers at about 10:30 p.m., recovering two vials of crack cocaine. According to Wynne’s trial testimony, these vials were immediately placed in an envelope on which he wrote the arrestee’s name and the location and time of arrest. At approximately 11:25, Wynne received another radio message from Wasson. As a result, he arrested defendant, whom he intercepted about two minutes later as he left a nearby liquor store. Wynne found no money on defendant’s person, but he did find one cocaine vial like the ones that had been recovered from the other arrestee. He sealed this vial in a separate envelope, once again writing down the arrestee’s name and the time and place of arrest.

Upon returning to the precinct, Wynne vouchered the vials. Although Wasson promptly identified defendant as the seller and the other arrestee, Peter Gerzbach, as the buyer, Wynne conceded that the voucher prepared for Peter Gerzbach initially indicated that he was the seller. Defendant was subsequently charged with third degree criminal sale of a controlled substance as well as third degree criminal possession.

The People timely disclosed the complaint report and the other documents that were prepared at the precinct. However, the envelopes in which Officer Wynne had placed the two arrestees’ cocaine vials were never turned over. During the trial, Wynne acknowledged that he had destroyed the envelopes after transferring the information they contained to his on-line booking sheet and complaint report.

At the close of evidence, defense counsel asked the court to give the jury an adverse-inference charge regarding the destruction of the arrest envelopes. The People opposed this request, noting that "[t]he officer has stated * * * that all the information on the envelopes [had been] transported to his reports.” The trial court denied the defense motion without further comment. The jury ultimately found defendant guilty of the charged crimes.

On his appeal from the judgment of conviction, defendant argued that the destruction of the envelopes constituted a Rosario violation. However, the Appellate Division rejected this argument, holding that "[t]he information contained on the destroyed security envelopes * * * w[as] the 'duplicative equivalent’ of that contained in the on-line booking sheet and complaint reports * * * turned over to the defendant prior to trial.” (205 AD2d 555, 556.) The Court also concluded that the information purportedly contained on the envelopes "was not relevant to the issue of whether the defendant was the individual who[m] the surveilling officer observed selling cocaine.” Contrary to the Appellate Division’s holding, we conclude that the destroyed envelopes cannot be considered the "duplicative equivalent” of the disclosed arrest material.

In People v Consolazio (40 NY2d 446, 454), the Court determined that certain undisclosed worksheets were Rosario material but concluded that a sanction for the prosecution’s withholding of the worksheets was unnecessary because an examination of the document revealed that the statements they contained "were the same” as the statements made in the disclosed Grand Jury minutes, "the only difference being as to the particular form in which [the] statements were recorded.” This holding was subsequently characterized as a "commonsense” limitation on the scope of the People’s Rosario obligation (People v Jackson, 78 NY2d 638, 644).

Since Consolazio was decided, we have had occasion to explain what is meant by the duplicative-equivalent "exception” to the Rosario rule (see, People v Jones, 70 NY2d 547, 551, n 3). We stated in People Ranghelle (69 NY2d 56, 63), for example, that "[statements are not the 'duplicative equivalent’ of previously produced statements * * * just because they are 'harmonious’ or 'consistent’ with them.” A statement cannot be a "duplicative equivalent” if it contains even minor differences resulting from errors in transcription (id., at 61-62). Thus, in People v Young (79 NY2d 365, 370), we rejected a duplicative-equivalence claim because the undisclosed report mentioned details that the disclosed report did not. We also stated that the duplicative-equivalent exception cannot be invoked unless the two statements in question came from the same source (id., at 370).

In light of the need for a precise correlation between the undisclosed and disclosed material, this Court has previously assumed without discussion that a visual inspection of both documents is necessary (see, People v Adger, 75 NY2d 723, 725; People v Quinones, 73 NY2d 988, 989; People v Consolazio, supra, at 454). Indeed, in People v Wallace (76 NY2d 953, 955), where the undisclosed document was unavailable for inspection, we stressed that the document’s absence made it impossible to determine whether the material it contained was duplicated elsewhere.

We now make explicit what was implicit in our holding in Wallace, i.e., that a document that has been lost or destroyed and is therefore no longer available for judicial inspection cannot be deemed the "duplicative equivalent” of Rosario material that has previously been disclosed. Our holding is based on our practical recognition that a document’s unavailability poses an insurmountable barrier to making the detailed comparison and assessment that our decisions in Ranghelle and Young require.

Contrary to the People’s contention, a police officer’s testimony regarding the contents of a lost or destroyed police document is not an acceptable substitute for the document itself, nor is it a sufficient basis from which the court could infer the requisite duplicative equivalence. Even where a document has purportedly been transcribed verbatim, inadvertent errors, omissions and deletions can occur, giving rise to precisely the kind of discrepancies that are most useful in cross-examination (see, e.g, People v Young, supra, at 369-370; People v Ranghelle, 69 NY2d 56, 63-64, supra; see also, People v Kass, 25 NY2d 123). Since the transcriber is likely to be unaware of these errors, that individual’s testimony cannot provide the necessary assurance that the two documents were alike in all respects.

Nor may the use of such testimony as a substitute for the destroyed document be justified under principles allowing the use of "secondary evidence” where the "best evidence”, i.e., the original document, has been lost or destroyed (see, e.g., Schozer v William Penn Life Ins. Co., 84 NY2d 639). The "best evidence” rule requires a showing that the loss or destruction of the document has been sufficiently explained and that the mishap was an innocent one (id., at 644). Such a foundational showing cannot ordinarily be made in this context, since a law enforcement officer’s deliberate destruction of a witness’s statement is inconsistent with the obligation implicitly imposed by the Rosario rule to preserve such statements for disclosure to the defense. Moreover, as previously noted, given the importance of even the smallest of details, the proponent cannot in these circumstances satisfy the "heavy burden” of establishing that the transcriber’s testimony from memory "is a reliable and accurate portrayal of the original” (id., at 645).

Inasmuch as the destroyed envelopes in this case cannot be considered the duplicative equivalent of the disclosed police reports, the exception to the Rosario rule of disclosure is unavailable. Accordingly, a Rosario violation plainly occurred, and it remains to be determined whether, as a matter of law, the trial court erred in declining to grant defense counsel’s request for an adverse-inference instruction as a sanction for this prosecutorial error.

We have previously held that "[wjhere the People fail to exercise due care in preserving Rosario material, and the defendant is prejudiced thereby, 'the [trial] court must impose an appropriate sanction’ ” (People v Wallace, 76 NY2d 953, 955, supra, quoting People v Martinez, 71 NY2d 937, 940). Since some showing of prejudice is essential, we have also stated that "the trial court must try to determine the content of the missing material” (People v Banch, 80 NY2d 610, 616). However, since a precise replication of a missing document cannot be achieved, the trial court’s inquiry must ordinarily be limited to ascertaining the document’s subject matter and approximate contents with a view toward determining its relevance (see, e.g., People v Haupt, 71 NY2d 929).

In this case, defendant has made a colorable claim of prejudice. Defendant’s position at trial was that he was the buyer, that the other arrested individual was the seller and that at some point the police had confused the two arrestees’ roles. This claim was supported by the facts that the crime of criminal sale had been inscribed on the voucher for the vials recovered from Gerzbach, that defendant had been unable to afford a $1.40 bottle of wine immediately before he was arrested, and that Gerzbach, in contrast, had had substantially more money on his person at the time of arrest. Given the defense’s theory, information contained on the destroyed envelopes, including the times and locations of the respective arrests, might have provided useful additional support for the defense position. For example, if the envelope containing two cocaine vials had been inscribed with defendant’s name rather than Gerzbach’s, it would have advanced the defense’s contention that he was the buyer whom Wasson had observed exchanging money for some "vials” of cocaine. Notably, only one of the two destroyed envelopes contained more than one vial.

We are not persuaded by the People’s contention that defendant’s claim of prejudice is too speculative. Since it was the conduct of the police that resulted in the loss of the envelopes and made it impossible to know whether the information they contained was consistent with the People’s position at trial (see, People v Wallace, supra, at 955), the People cannot now be heard to complain that the defendant’s showing of prejudice is not sufficiently definite and clear.

Significantly, this is not a case in which the relevance of the lost document was marginal (see, People v Haupt, 71 NY2d 929, supra). Moreover, unlike People v Haupt (supra, at 931), which is cited by the dissent, it is not a case in which defense counsel sought the "drastic remedy” of dismissal of the charges. Nor is it a case where the less drastic but nonetheless stringent sanction of witness preclusion was sought (see, People v Martinez, supra). In this case, the requested sanction — an adverse-inference instruction — was appropriate and proportionate to the harm that resulted from the destruction of the envelopes. Indeed, in People v Martinez (supra), where we found the possibility of prejudice "remote”, this Court held that an adverse-inference instruction was an appropriate sanction for the loss of certain police officer notes that may have once existed.

It may be true, as the dissenter opines, that no "bad faith” was involved in the Officer Wynne’s destruction of the envelopes. However, it is also true that the destruction of the envelopes was a deliberate act undertaken by a law enforcement officer who had a duty to preserve potential Rosario material. Thus, this case is a far cry from People v Haupt (supra), in which the material in question was accidentally destroyed in accordance with routine property-room procedures during the 16-year hiatus between the defendant’s indictment and his trial. It is also unlike People v Martinez (supra), in which the officer who ostensibly created the document in question was simply not available at the time of trial and an "intensive investigation” failed to reveal any of the officer’s notes.

Given the articulable showing of prejudice that the defendant made, the unavailability of the documents from which a less conjectural showing might have been made and, finally, the circumstances of the documents’ loss, the trial court’s refusal to impose the limited sanction counsel requested constituted an abuse of discretion as a matter of law (see, People v Wallace, supra).

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

Bellacosa, J.

(dissenting). Because this case cuts yet another functional per se reversal channel into the prejudice-remedy phase of Rosario permutations, I respectfully dissent. My vote and reason are expressed separately to emphasize what I perceive to be an urgent need for legislative reexamination and remedial action, including consideration of open prosecution file pretrial discovery (People v Banch, 80 NY2d 610, 625-627 [Bellacosa, J., dissenting]; People v Jones, 70 NY2d 547, 553-557 [Bellacosa, J., concurring]). The unabating variety of difficulties in this Rosario area of criminal adjudication suggests that reform of the criminal discovery tension with pretrial open prosecution file review by defendants, rather than subjecting jury-tried cases to Rosario-type per se reversals years later, is in order. Such a change or some other reasonably calibrated reformulation should engender more benefits than disadvantages and will undoubtedly bring about a greater degree of ultimate justice among the parties.

Levine, J.

(dissenting). On the basis of the issues actually raised by the defense at the trial, I think the Appellate Division correctly concluded that no prejudice to the defendant has been shown here as a result of the loss of the Rosario materials in this case. The Rosario material consisted of the envelopes the arresting officer temporarily used to store the vial of drugs taken from defendant upon his arrest and the two vials taken from Peter Gerzbach, the other arrestee, until the vials were later that night placed and sealed in other evidence envelopes for transmittal to the police laboratory for drug testing. Thus, although I agree with the majority that the testimony of the arresting officer regarding the content of his notations on the missing envelopes cannot be regarded as the "duplicative equivalent” (People v Consolazio, 40 NY2d 446, 454) of the envelopes themselves, I would, nonetheless, affirm the conviction.

Our prior cases dealing with nonwillful, merely negligent loss or destruction of Rosario materials, such as in the instant case, unambiguously hold that, only when there has been some demonstrable prejudice to the defendant in being deprived of Rosario materials, is it an abuse of discretion for the trial court not to impose some sanction, such as the adverse inference charge requested here. Thus, in People v Banch (80 NY2d 610) we held that "where the People have failed to exercise due care in preserving Rosario material and the defendant is prejudiced by the loss or destruction, it is an abuse of discretion for the court to impose no sanction” (id., at 616 [emphasis supplied]). And in People v Haupt (71 NY2d 929) we affirmed a conviction in which the trial court declined to impose any sanction for lost Rosario materials, where the Appellate Division concluded, as it did here, that "[a]ny harm resulting from the loss of evidence * * * was negligible” (128 AD2d 172, 174).

Our prior cases also point the way to the analysis necessary to determine whether the defendant was prejudiced by being deprived of the use of lost or destroyed Rosario materials. First, the purpose of the Rosario rule is not to protect a defendant’s general right to discovery of the People’s evidence, nor to aid in the disclosure of any and all exculpatory material in the prosecution’s files; it is solely designed to aid the defense in effective cross-examination of the People’s witnesses. "As long as the statement relates to the subject matter of the witness’ testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examinatian” (People v Rosario, 9 NY2d 286, 289 [emphasis supplied]). And in People v Ranghelle (69 NY2d 56) we described the further development of our Rosario jurisprudence as follows: "[w]e have periodically refined the rule to ensure that a defendant 'receives the full benefit of a [prosecution] witness’ statements for impeachment purposes’ ” (id., at 62, quoting People v Poole, 48 NY2d 144, 149 [emphasis supplied]).

Second, in ascertaining whether a defendant suffered prejudice as a result of the loss of a witness’ prior statement, the content of missing materials is not open to sheer speculation by the defense. Some effort must be made by the trial court to ascertain their likely contents, from the testimony of the witness, or of the person who recorded the witness’ missing statement, or other evidence in the record. Thus, we said in People v Banch that, in cases involving lost or destroyed Rosario materials, "the trial court must try to determine the content of the missing material and the circumstances of the loss or destruction” (80 NY2d, at 616, supra [emphasis supplied]; see also, id., at 621 ["the trial court did not conduct the inquiry that is required when Rosario material is lost or destroyed — an inquiry into the contents of the material and the circumstances of its disappearance”]).

Finally, once the likely general content of the lost material is ascertained, a critical factor in determining prejudice is the relevancy of the subject matter of the material to some contested issue in the case. To illustrate, in People v Haupt the loss of the investigating officer’s notebook and other investigative police reports in that murder case — prototypical Rosario materials — were found nonprejudicial because "[t]he lost evidence had little or no relevance” to the "crucial issue at this trial [i.e.,] whether the defendant was legally sane at the time of the shooting” (71 NY2d, at 931, supra [emphasis supplied]). Conversely, in People v Wallace (76 NY2d 953) we concluded that the imposition of a sanction for losing the materials was required, because in that "buy and bust” drug prosecution, they contained contemporaneous descriptions of the suspect seller recorded by the undercover and arresting officers, which "would have been helpful to defendant in cross-examining the officers, given the importance of the identification issue in the case” (76 NY2d, at 955 [emphasis supplied]).

Before applying these principles from our Rosario precedents to this case, a brief review of the evidence at the trial is necessary. The evidence incriminating defendant consisted of the testimony of Police Officers Wasson and Wynne of the New York City Police Department’s 105th Precinct (Queens) Narcotics Enforcement Unit at the time of defendant’s arrest. Shortly after 10:00 p.m., on the night of the arrest, Officer Wasson, equipped with binoculars and a walkie-talkie two-way radio, was stationed at an observation post on the roof of a three-story building at the well-lighted intersection of 220th Street and Hempstead Avenue, Queens. That location was one of 19 "target areas” for drug traffic in the 105th Precinct. He testified to observing a group of four or five African-American men standing in a circle conversing. At about 10:30 p.m. Officer Wasson observed a white male, subsequently identified as Peter Gerzbach, riding a bicycle to the intersection and coming to a stop, at all times remaining on the bicycle. Gerzbach was wearing a camouflage hat, camouflage jacket, blue jeans and white sneakers. After Gerzbach stopped, defendant, described by Officer Wasson as a bearded black male, wearing a dark or black jacket, blue jeans and white sneakers, left the group and approached Gerzbach. After a brief conversation, Gerzbach reached in his pocket and handed defendant some money. Defendant then reached in his pocket and handed Gerzbach two vials, whereupon Gerzbach left the scene on his bicycle. Officer Wasson radioed Officer Wynne (located in an unmarked police car several blocks away) giving him Gerzbach’s description and the direction in which he was going. Shortly thereafter, he received Wynne’s report of Gerzbach’s arrest. Officer Wasson continued his surveillance of the intersection, observing defendant in two other similar transactians, neither of which successfully led to the buyer’s arrest. He also reported and described to another member of the police apprehension team a transaction leading to the arrest of a different seller and buyer.

At about 11:25 p.m. that night, Officer Wasson saw defendant leaving the scene, apparently for the night. He radioed Officer Wynne defendant’s description and where he was going. After defendant’s arrest, Officer Wasson made confirmatory identifications of defendant and Gerzbach.

Officer Wynne testified to arresting Gerzbach on his bicycle after receiving Officer Wasson’s report and finding on his person two vials containing a substance he tentatively identified as cocaine. He placed and sealed both vials in a small plain envelope, marking on the envelope Gerzbach’s name and the time and location of the arrest. Officer Wynne handcuffed Gerzbach, put him in the back seat of the police car and placed his bicycle in the trunk. He then resumed his previous station awaiting further report of drug transactions from Officer Wasson.

Following Officer Wasson’s report of defendant’s departure from the intersection under surveillance, Officer Wynne testified that he spotted defendant several blocks away from the intersection going into a liquor store. Officer Wasson placed defendant under arrest immediately upon his exit from the liquor store with his purchase of a bottle of wine. He recovered from defendant’s person one vial of what apparently was cocaine. That vial was placed in another envelope on which Officer Wynne noted defendant’s name and the time and location of the arrest. Defendant was then handcuffed and placed next to Gerzbach in the police car.

Upon subsequently returning to the station house that night to process defendant’s and Gerzbach’s arrests, Officer Wynne testified that he transferred the information he marked on the envelopes containing the seized cocaine vials to his "on-line” booking sheet and complaint report. He then opened the envelopes and placed and sealed the two vials recovered from Gerzbach in a single brown evidence envelope used for transmittal of drug evidence to the police laboratory for testing, signing the envelope with his shield number over the seal and also giving the evidence a voucher number with other identifying data. Officer Wynne repeated that procedure with respect to the vial taken from defendant’s person, transferring that vial to a separate evidence envelope. He then apparently discarded the two plain envelopes used initially and temporarily for the purpose of separately storing the cocaine vials at the time of the arrests of Gerzbach and defendant. Defendant has not contended that in doing so, Officer Wynne was acting in bad faith with any intention of destroying or otherwise depriving the defense of potential Rosario materials. The notations Officer Wynne made on these two missing envelopes are the Rosario materials upon which this appeal is based. The remainder of the prosecution’s case consisted of the testimony of the two police chemists who tested the contents of the vials and confirmed that they consisted of cocaine.

Defendant called only one witness, the manager of the liquor store where he purchased a bottle of wine immediately before his arrest. The manager recalled that defendant came into the store "[l]ate in the evening. Ten, 11:00.” He testified that the bottle of wine cost $1.40 and defendant was short about 20 or 25 cents, but he sold it to him anyway, because defendant was a regular customer. He also saw defendant being arrested as he left the store.

The theory of the defense in this case, from his attorney’s opening statement to summation, was that Officer Wasson, because of the distance, lighting and maneuvers to avoid detection at his observation post above the intersection, had mistakenly identified defendant as seller and Gerzbach as buyer in the transaction he observed between them, whereas the converse was the actual fact. The defense relied upon (1) the testimony of the liquor store manager that defendant gave him his last $1.20 to buy wine, a circumstance inconsistent with his receipt of money in several drug sales; (2) that on the voucher Officer Wynne made out for transmittal of the drug vials seized from Gerzbach, for his designation of the offense under investigation, Officer Wynne wrote "CSCS”, for criminal sale of a controlled substance; and (3) that the chemists’ descriptions of the textures of the cocaine seized from Gerzbach and from defendant were different, suggesting, according to defense, that they did not all come from the same individual.

Based upon the foregoing evidence and the theory of the defense as framed in argument and cross-examination, the Appellate Division correctly concluded that no prejudice was shown here such as to mandate the imposition of any sanction for the negligent loss of Rosario materials. As our cases hold, the only legitimate use as Rosario materials of Officer Wynne’s notations on the lost envelopes was the impeachment of his testimony (see, People v Rosario, supra; People v Ranghelle, supra). The defense, however, did not attack Officer Wynne on cross-examination nor comment adversely on his testimony in summation. Indeed, under its theory of Officer Wasson’s erroneous role reversal of the two arrested suspects, the defense had no reason to cast any doubt on Officer Wynne’s credibility. Thus, in summation, defense counsel stated: "now, the DA’s case is based upon the testimony of Officer Wasson, basically. The arresting officer really had no knowledge of what transpired on 220th Street and Hempstead Avenue.”

Furthermore, the trial court, performing its obligation imposed by Banch (supra) to ascertain the contents of the missing Rosario materials, found that this consisted solely of Wynne’s notation on each envelope of the name of the arrestee and the time and location of the arrest. That finding was reiterated by the Appellate Division, and should be beyond our power to review. Even if not, in view of the limited purpose of the missing envelopes for the separate, temporary storage of the vials taken from the arrestees until they could be vouchered and transferred to proper evidence envelopes at the station house, there is absolutely nothing in the record to suggest any different or additional content to Wynne’s notations on the missing envelopes. Thus, there is nothing but pure speculation to defendant’s assertions, made for the first time in his brief on appeal, that the missing (empty) envelopes might have additional notations that would somehow establish that the two vials Wynne testified he recovered from Gerzbach were in fact seized from defendant, and thereby would have supported the defense theory that that defendant was the buyer in his transaction with Gerzbach. Also speculative are defendant’s alternative suggestions, also made for the first time on appeal, that the envelopes might have contained the names of different arrestees than either defendant or Gerzbach, or yet may have contained some other, undescribed exculpatory material. Giving any weight to such speculation on the contents of the missing Rosario materials would effectively remove the requirement of the existence of prejudice as a condition precedent to a mandatory sanction for lost or destroyed Rosario materials. It would be impossible to demonstrate the absence of prejudice from the deprivation of every conceivable content of the lost or destroyed materials.

The majority engages in just that kind of speculation in supposing that the missing, empty envelopes "might have provided useful additional support for the defense position * * * if the envelope containing two cocaine vials had been inscribed with defendant’s name rather than Gerzbach’s” (majority opn, at 571 [emphasis supplied]). Had the empty envelopes been preserved and turned over to the defense, they only would have disclosed that one envelope had noted on it defendant’s name and time and location of arrest, and the other bore the notation of Gerzbach’s name and time and location of arrest. The envelopes would not have disclosed which one was used to contain the vials seized from Gerzbach and which contained the single vial taken from defendant. Therefore, it seems irrefutable that the envelopes would have disclosed absolutely nothing indicative of which vials were seized from defendant and which from Gerzbach.

Lastly, no prejudice was established here because, under the theory of the defense "the lost evidence had little or no relevance” (People v Haupt, 71 NY2d, at 931, supra) to the issue actually contested at defendant’s trial. As already discussed, the trial court found that the Rosario materials here consisted solely of Wynne’s notations of each arrestee’s name, location of the arrest and time of arrest. The defendant at the trial did not dispute that Wynne had in fact arrested him and Gerzbach, or the fact that he recorded their respective names on the envelopes. Accurate designation of the location of the arrest would have actually bolstered the defense position, in view of its heavy reliance on the testimony of the liquor store manager regarding the sequence of events leading to defendant’s arrest outside his store. Moreover, there was absolutely no challenge at the trial to the actual times, or the sequence of timing, of the respective arrests of defendant and Gerzbach, again because these facts were irrelevant to whether Wasson had erroneously reversed their roles in observing the drug transaction that occurred before the arrest or, as also vaguely suggested in the defense summation, that the police somehow mixed up the roles of Gerzbach and defendant in doing the paperwork at the station house many hours after the arrests.

Therefore, contrary to the majority’s finding, the relevance of the missing envelopes to the theory of the defense and the contested issue in this case (whether Gerzbach rather than defendant was the seller), was, if not totally nonexistent, even more "marginal” (majority opn, at 572) than the missing Rosario materials in People v Haupt (supra). In Haupt, this Court recognized that the missing documents there might indeed have had some possible relevancy to the defendant’s insanity defense but, nonetheless, upheld the discretion of the trial court in declining to impose sanctions. Instead, we held that it was sufficient that the defense counsel adversely commented on the missing materials in summation just as did the defendant’s attorney in the instant case. "To the extent that it might have a bearing on the jury’s assessment of the defendant’s mental state at the time of the shooting, defense counsel on cross-examination and later on summation, noted its absence and emphasized the People’s responsibility for its loss and the potential impact on the defense” (People v Haupt, 71 NY2d, at 931, supra).

As demonstrated by the foregoing discussion, absent sheer speculation on additional or different contents of the notations on the envelopes than that found by both courts below, the contents had no demonstrable value to prove: that the two vials were seized from defendant rather than Gerzbach; that the two vials were sold from a different source than the single vial taken from defendant’s person; that the two officers mistakenly reversed the roles of the two arrestees in processing arrest papers later at the station house; or in any other way that Officer Wasson was in error in identifying defendant as the seller and Gerzbach as the buyer in the transaction he observed.

Thus, upon any fair reading of the record and of the defense position at the trial in this case, the majority’s conclusion that there was an "articulable showing of prejudice” cannot be supported (majority opn, at 572), certainly not one that the majority has articulated, apart from its speculation on the contents of the missing envelopes. I fear that the teaching of the majority’s decision today is that prejudice is established by the slightest, most tenuous connection between lost or destroyed Rosario materials and some issue at the trial. The decision will, for all intents and purposes convert the present rule in such cases, in which the issue of sanctions is dependent upon an individualized analysis and weighing of the People’s culpability in the loss of the materials and a realistic assessment of prejudice to the defendant, into a per se rule in which sanctions would be mandatory except perhaps in the rarest of cases of lost or destroyed Rosario materials. My apprehension in this regard is fueled by the majority’s criticism of me (majority opn, at 571-572, n) for resorting to the evidence at the trial to show the absence of prejudice from the lost Rosario materials here, as though the issue of actual prejudice can be determined in a vacuum without reference to the trial evidence. Disregard of the trial evidence is the hallmark of this Court’s Rosario per se reversal jurisprudence (see, People v Jones, 70 NY2d 547, 552-553; People v Perez, 65 NY2d 154, 159-160).

Upon any fair, realistic appraisal of the evidence at the trial, the issues framed by the defense and the likely contents of the missing envelope notations, the Appellate Division was clearly correct in concluding that defendant was not prejudiced by the absence of Rosario materials in this case. I, therefore, vote to affirm.

Chief Judge Kaye and Judges Simons, Smith and Ciparick concur with Judge Titone; Judges Bellacosa and Levine dissent in separate opinions.

Order reversed, etc.

       Similarly unpersuasive is the dissent’s detailed dissection of the trial record in an effort to rebut defendant’s claim of prejudice. The dissent’s assertions are precisely the kind of fact-based arguments that would have been made before the jury if the envelopes had been available for use by the defense. Unfortunately, the destruction of those envelopes made it impossible for the defense to make contrary arguments at trial or to establish the kind of record that the dissent seems to demand. In light of that circumstance, we deemed the dissent’s marshalling of the trial facts an unhelpful method for determining prejudice.


author: Levine, J.

text:
    [658 NE2d 1005, 635 NYS2d 132]
    Sheldon H. Solow, Doing Business as Solovieff Gallery Company, Respondent, v Karl G. Wellner et al., Appellants.
    Argued September 21, 1995;
    decided October 31, 1995

      POINTS OF COUNSEL

      Karlsson & Ng, P. C., New York City (Kent Karlsson and James O. Hivnor of counsel), for certain tenants, appellants.
    I. The Court below’s reduction, elimination, and/or vacating for remand of Trial Term’s abatement awards was improper because such actions (1) did not have evidentiary support on the record, and (2) were premised upon an overly narrow interpretation of Real Property Law § 235-b. (Park W. Mgt.

      Corp. v Mitchell, 47 NY2d 316; Sears, Roebuck & Co. v Galloway, 195 AD2d 825; Thoreson v Penthouse Intl., 80 NY2d 490; 829 Seventh Ave. Co. v Reider, 111 AD2d 670; Derring v Metcalf, 74 NY 501; 111 E. 88th Partners v Simon, 127 Misc 2d 74; Tower W. Assocs. v Derevnuk, 114 Misc 2d 158; H & R Bernstein v Barrett, 101 Misc 2d 611; Matter of Romanow v Heller, 121 Misc 2d 886; Ocean Rock Assocs. v Cruz, 66 AD2d 878, 46 NY2d 998.) II. Tenants are entitled to attorneys’ fees, as they proved the landlord’s warranty breach (denied by him), and were successful in obtaining the central relief sought; furthermore, the standard articulated by the Court below for determining attorneys’ fees liability is improper. (Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Lynch v Leibman, 177 AD2d 453; Solovieff Gallery Co. v Langston, 167 AD2d 325; Park W. Mgt. Corp. v Mitchell, 47 NY2d 316; Bunny Realty v Miller, 180 AD2d 460; Gottlieb v Laub & Co., 82 NY2d 457; Murphy v Vivian Realty Co., 199 AD2d 192; Nestor v McDowell, 81 NY2d 410; Cier Indus. Co. v Hessen, 136 AD2d 145.) III. Landlord should not be awarded interest on the unabated rent where tenants are the prevailing parties as they proved landlord’s breach of the New York residential warranty. (Kips Bay Towers Assocs. v Yuceoglu, 134 AD2d 164; Delulio v 320-57 Corp., 99 AD2d 253; Kachian v Aronson, 123 Misc 2d 743.) IV. The evidence more than supported the amounts awarded and Civil Court’s awards should be fully affirmed.

      Finder, Novick, Kerrigan & Anderson, New York City (Robert J. Anderson of counsel), for E. Bohlen and others, appellants.
    I. The conditions which existed in the premises during the period in question were detrimental to the tenants’ life, health and safety, constituted significant breaches of the warranty of habitability, and justified the abatements awarded by the trial court. (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 444 US 992; Goldner v Doknovitch, 88 Misc 2d 88; McGuinness v Jukubiak, 106 Misc 2d 317; Mantica R. Corp. v Malone, 106 Misc 2d 953; Towers W. Assocs. v Derevnuk, 114 Misc 2d 158; Garcia v Freelan Realty, 63 Misc 2d 937; 111 E. 88th Partners v Simon, 106 Misc 2d 693; Fraley Realty Corp. v Stocker, 115 Misc 2d 52.) II. The trial court did not base its decision on a "luxury standard” and did not expand the warranty of habitability law. (Tower W. Assocs. v Derevnuk, 114 Misc 2d 158; Donovan v Aeolian Co., 270 NY 267; 829 Seventh Ave. Co. v Reider, 111 AD2d 670.) III. The Civil Court’s ruling that the tenants were entitled to attorneys’ fees was proper. (Lynch v Leibman, 177 AD2d 453; Bunny Realty v Miller, 188 AD2d 460; Concord Vil. Mgt. Co. v Rubin, 101 Misc 2d 625.) IV. Landlord cannot, and should not, be awarded interest. (Delulio v 320-57 Corp., 99 AD2d 253.)

      Piper & Marbury, New York City (Alfred Ferrer III of counsel), for Steven Tánger and another, appellants.
    The courts below erred in reducing the 10% common area abatements, reducing the time period for abatements, and refusing to affirm the award of attorneys’ fees to the tenants, and further erred as a matter of law and fact in remanding for recalculation the 3% rent abatement awarded to the Tánger appellants by the trial court which heard all the evidence.

      Wolman & Carponter, P. C, New York City (Candace C. Carponter of counsel), for Jerry Lubliner, appellant.
    The factual evidence amply supports the decision of Civil Court to award the 3% rental abatement to appellant, in addition to the common area abatements awarded therein, and further supports a denial of a recovery of interest and/or attorneys’ fees to landlord petitioner-respondent, and the recovery by appellant of his attorneys’ fees and costs incurred herein.

      Gerald D. Fischer, New York City, for S. George Gianis, appellant.
    The total rent abatement of 16% awarded to appellant by the trial court is amply supported by the trial record and should be affirmed.

      Stroock & Stroock & Lavan, New York City (Charles G. Moerdler, Alan M. Klinger and David Bolton of counsel), for respondent.
    The appellate courts below correctly rejected the trial court’s attempt to expand the scope of the warranty of habitability. (Thoreson v Penthouse Intl., 80 NY2d 490; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Jewish Home & Infirmary v Commissioner of N. Y. State Dept. of Health, 84 NY2d 252; Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 444 US 992; Suarez v Rivercross Tenants’ Corp., 107 Misc 2d 135; Concord Vil. Mgt. Co. v Rubin, 101 Misc 2d 625; Weissman v Evans, 56 NY2d 458; Davis v Rosenblatt, 159 AD2d 163; Matter of Coates, 9 NY2d 242; Rector, Church Wardens & Vestrymen of St. Bartholomew’s Church v Committee to Preserve St. Bartholomew’s Church, 84 AD2d 309.)

      Robinson Silverman Pearce Aronsohn & Berman, New York City (Harold A. Lubell, Susan A. Moldovan and Mark D. Risk
      of counsel), for Rent Stabilization Association of New York City, Inc., amicus curiae.

    The Civil Court’s expansion of the scope of the warranty of habitability was unwarranted and improper. (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 444 US 992; Baxter v Captain Crow Mgt., 128 Misc 2d 254; Suarez v Rivercross Tenants’ Corp., 107 Misc 2d 135; Concord Vil. Mgt. Co. v Rubin, 101 Misc 2d 625; Mantica R Corp. v Malone, 106 Misc 2d 953; Tower W. Assocs. v Derevnuk, 114 Misc 2d 158.)
   OPINION OF THE COURT

Levine, J.

Appellants are a group of approximately 65 current and former tenants of an apartment building located at 265 East 66th Street in Manhattan. Following a pervasive rent strike, the landlord commenced summary nonpayment proceedings to recover unpaid rent for the period October 1987 through May 1988. In a joint trial before the Civil Court the tenants conceded the landlord’s prima facie case of rent nonpayment but asserted as an affirmative defense and counterclaim the landlord’s breach of the implied warranty of habitability (Real Property Law § 235-b). The tenants also counterclaimed, inter alla, for an award of attorneys’ fees.

The trial court interpreted Real Property Law § 235-b as requiring that "the premises * * * be maintained in accordance with the reasonable expectations of the tenant” (150 Misc 2d 642, 650). Accordingly, because these tenants resided in a uniquely designed building on Manhattan’s "fashionable” upper east side and paid comparatively high rents, the court concluded that the reasonable expectations against which the landlord’s performance would be measured "encompassed more than the minimal amenities” (id., at 650, 651). Applying this standard to the evidence before it, the court held that the landlord had breached the implied warranty of habitability and awarded the tenants a 10% abatement for the common area problems and additional abatements of from 1 to 11% for individual apartment complaints for the portion of each tenancy that fell within the six-year Statute of Limitations period.

Because of the various rent abatements awarded, the landlord received significantly reduced judgments on his unpaid rent claims and, in some cases, judgment was entered in the tenant’s favor. Additionally, the trial court held that the tenants as a group were entitled to attorneys’ fees as the prevailing parties and that prejudgment interest should be denied the landlord on an estoppel theory but awarded to those tenants who received a judgment in their favor.

On appeal to the Appellate Term the landlord challenged the propriety of the warranty of habitability abatements. Following its legal and factual review of Civil Court’s disposition of the case (see, CPLR 5501 [d]), that court rejected the trial court’s use of a heightened warranty standard and found that under the proper standard only one of the building-wide conditions — elevator service problems — warranted an abatement (see, 154 Misc 2d 737). Appellate Term thus reduced the common area abatement to 5% and limited it to the period May 1987 through May 1988. As to the conditions of the individual apartments, Appellate Term concluded that with respect to 16 of the apartments the evidence did not support an additional abatement and that with respect to the remaining apartments, a remand for recalculation under the appropriate standard and for specific findings as to the nature and duration of the defects was necessary. In light of its remand order, Appellate Term declined to make a final determination on the issues of attorneys’ fees and prejudgment interest (id., at 744).

The Appellate Division granted the tenants’ motions for leave to appeal, and upon review, modified Appellate Term’s remand direction only to the extent of deleting the requirement that Civil Court make specific findings as to the amount of offset attributable to each apartment-specific defect, and as modified, otherwise affirmed (205 AD2d 339). That same panel of the Appellate Division subsequently granted the tenants’ motions to appeal to this Court, certifying the following question for our review: "Was the order of this Court, which modified the order of [the Appellate Term of] the Supreme Court, properly made?” We now answer that question in the affirmative.

Pursuant to Real Property Law § 235-b, every residential lease contains an implied warranty of habitability which is limited by its terms to three covenants: (1) that the premises are "fit for human habitation”, (2) that the premises are fit for "the uses reasonably intended by the parties”, and (3) that the occupants will not be subjected to conditions that are "dangerous, hazardous or detrimental to their life, health or safety” (Real Property Law § 235-b). In Park W. Mgt. Corp. v Mitchell (47 NY2d 316, 327, cert denied 444 US 992), this Court described the statutory warranty as creating an implied promise by the landlord that the demised premises are fit for human occupancy. We specifically rejected the contention that the warranty was intended to make the landlord "a guarantor of every amenity customarily rendered in the landlord-tenant relationship” and held that the implied warranty protects only against conditions that materially affect the health and safety of tenants or deficiencies that "in the eyes of a reasonable person * * * deprive the tenant of those essential functions which a residence is expected to provide” (id., at 327, 328 [emphasis supplied]).

While Civil Court based its finding of a breach of the warranty of habitability in part on conditions reasonably related to health and safety and essential functions, it did not limit the implied warranty to such matters. Instead, the court interpreted the second prong of the statutory covenant — that the premises are fit for "the uses reasonably intended by the parties” — as encompassing the level of services and amenities that tenants reasonably expect to be provided under the financial and other terms of their individual leases.

We reject Civil Court’s interpretation of the statute. As discussed, the implied warranty of habitability sets forth a minimum standard to protect tenants against conditions that render residential premises uninhabitable or unusable. Thus, the statutory reference to "uses reasonably intended by the parties”, rather than referring to a broad spectrum of expectations arising out of the parties’ specific contractual arrangement, reflects the Legislature’s concern that tenants be provided with premises suitable for residential habitation, in other words, living quarters having "those essential functions which a residence is expected to provide” (Park W. Mgt. Corp. v Mitchell, supra, at 328). This prong of the warranty therefore protects against conditions that, while they do not render an apartment unsafe or uninhabitable, constitute deficiencies that prevent the premises from serving their intended function of residential occupation. Thus, for example, Appellate Term correctly concluded that operable elevator service is an essential attribute of a high-rise residential apartment building because a reasonable person could find that it is indispensable to the use of the demised premises.

The trial court’s contrary interpretation, based on expectations arising from the terms of the lease, would make the statutory implied warranty of habitability coextensive with the parties’ lease agreement. However, the statute’s non-waiver clause (Real Property Law § 235-b [2]) indicates a legislative intent to insure the independence of the warranty of habitability from the specific terms of a lease. Moreover, as we noted in Park W. Mgt., section 235-b was intended to provide an objective, uniform standard for essential functions, while the trial court’s standard creates an individualized subjective standard dependent on the specific terms of each lease. Furthermore, grafting the tenant’s contractual rights onto the implied warranty would unnecessarily duplicate other legal and equitable remedies of the tenant (see, 3 Warren’s Weed, New York Real Property, Leasing of Residential Property: Rights and Obligations of Landlords and Tenants §§ 6.03, 7.01 [4th ed]).

Appellate Term thus correctly rejected the trial court’s application of the warranty of habitability. We also agree with Appellate Division’s determination that in light of the order remitting the case to Civil Court for recalculation of the abatement awards, it was premature to review Civil Court’s determination of the tenants’ counterclaim for attorneys’ fees. Likewise, because Appellate Term’s remittal order vacated the existing judgments, it was premature for the appellate courts below to review the parties’ entitlement to prejudgment interest. We note, however, that entitlement to prejudgment interest is not dependent on prevailing party status, but rather, where, as here, the action is based on a claim of default on the lease agreement (see, RPAPL 711) and involves counterclaims for breach of the warranty of habitability and rent overcharges, the action sounds in contract and any party is thus entitled to prejudgment interest upon recovery of a money judgment (see, CPLR 5001 [a]; Siegel, NY Prac § 411, at 623 [2d ed 1991]).

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa and Ciparick concur; Judge Smith taking no part.

Order affirmed, etc.

      . In addition to the breach of warranty of habitability abatements, certain tenants received an additional rent offset representing rent overcharge damages.

      . Real Property Law § 235-b provides in pertinent part:
      "1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties.
      "2. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy.”


author: Chief Judge Kaye.

text:
    [658 NE2d 1009, 635 NYS2d 136]
    The People of the State of New York, Respondent, v Vicki-Crystal A. Wright, Appellant.
    Argued September 20, 1995;
    decided October 31, 1995

      POINTS OF COUNSEL

      Santaniello, Posnik & Basile, P. C. (Edward J. Partyka, of the Massachusetts Bar, admitted pro hac vice, of counsel), for appellant.
    I. The prosecution’s delay in providing a witness statement containing exculpatory material until the night prior to the commencement of trial constituted a violation of the principles enunciated in Brady v Maryland (373 US 83). (Giglio v United States, 405 US 150; People v Cwikla, 46 NY2d 434; Application of Kapatos, 208 F Supp 883; People v Tranchina, 64 AD2d 616; People v Clausell, 182 AD2d 132; United

      States v Wilkins, 326 F2d 135; United States v Agurs, 427 US 97; United States v Bagley, 473 US 667; People v Vilardi, 76 NY2d 67; People v Velez, 118 AD2d 116.) II. The prosecution’s failure to provide exculpatory information regarding the alleged victim’s status as a police informant constituted a violation of the principles enunciated in Brady v Maryland. (People v Steadman, 82 NY2d 1; People v Simmons, 36 NY2d 126; People v Quinones, 73 NY2d 988; People v Cotto, 28 AD2d 1116; People v Ciaccio, 47 NY2d 431; People v Salemi, 309 NY 208; People v Vilardi, 76 NY2d 67; People v Grice, 188 AD2d 397; People v Farruggia, 77 AD2d 447; People v Gaskin, 170 AD2d 458.) III. Defendant was denied effective assistance of counsel prior to and during the trial of this matter. (People v Rivera, 71 NY2d 705; People v Droz, 39 NY2d 457; People v Bennett, 29 NY2d 462; People v Brown, 45 NY2d 852; People v Saunders, 54 AD2d 938; United States v Tarricone, 996 F2d 1414; People v Toporczyk, 178 AD2d 947; People v Zayas, 61 AD2d 594.)

      Sol Greenberg, District Attorney of Albany County, Albany (Risa L. Viglucci of counsel), for respondent.
    I. The complained of evidence is not exculpatory. Therefore, there was no Brady violation. (People v Cwikla, 46 NY2d 434; People v Vilardi, 76 NY2d 67; People v Goggins, 34 NY2d 163; People v Pavao, 59 NY2d 282; People v Cortijo, 70 NY2d 868; People v Inniss, 83 NY2d 653; People v Schartzman, 24 NY2d 241; People v Webster, 139 NY 73; United States v Escobar, 842 F Supp 1519; People v Kloska, 191 AD2d 587.) II. This Court has no authority to review the discretionary denial of a motion to vacate judgment upon the ground of newly discovered evidence. (People v Crimmins, 38 NY2d 407; People v Gambacorta, 197 NY 181; People v Lesiuk, 186 AD2d 296, 81 NY2d 485; People v Powell, 96 AD2d 610; People v Salemi, 309 NY 208, 350 US 950; People v Priori, 164 NY 459; People v Adams, 184 AD2d 994; People v Wood, 94 AD2d 849; People v Wagner, 51 AD2d 186; People v Powell, 102 Misc 2d 775, 83 AD2d 719.) III. Appellant was provided meaningful representation by trial counsel. (People v Baldi, 54 NY2d 137; People v Rivera, 71 NY2d 705; People v De Mauro, 48 NY2d 892; People v Rose, 57 NY2d 837; People v Bell, 48 NY2d 933; People v Benn, 68 NY2d 941.)
   OPINION OF THE COURT

Chief Judge Kaye.

This case presents the question whether the People’s failure to inform the defendant that the complainant had previously operated as an informant for the local police department violated defendant’s right to due process. We conclude that the People were required to disclose this information pursuant to Brady v Maryland (373 US 83) and therefore reverse defendant’s conviction.

Defendant met Fred Washington at the Bottom’s Up bar in Albany. They talked and had several drinks before going to defendant’s apartment. From this point forward, their testimony differed markedly.

According to Washington, he and defendant had been hugging, kissing and holding hands at the bar. Upon arriving at her apartment, they entered defendant’s bedroom, where Washington undressed in her presence and placed his clothing on the floor next to the bed. Washington sat on the bed, and defendant left the bedroom. She returned wielding a knife, shouted at him, lacerated his penis and stabbed him in the chest. Washington then picked up his clothing, dressed and, after throwing a flower pot at the bedroom door, left the apartment with a radio. He flagged down a car and asked the driver to take him home. The driver, however, drove Washington to the hospital, over his protestations.

According to defendant, as she prepared to leave the bar she noticed that her jacket was missing. Washington told her that his friend had it and offered to call him, but not from the bar. Defendant agreed to let him call from her apartment. At her apartment, she showed Washington the phone in the living room, and she went to the bedroom to hide her purse. While she was in the bedroom Washington entered, naked. As he approached her, Washington told defendant, 'T want to * * * you.” Fearing rape, defendant grabbed a knife she kept on her dresser and stabbed him in the groin and chest. She forced Washington out of the bedroom and called 911.

Police Officer Douglas Walczak stated in his police report that he recovered a pair of boxer shorts, a shoe and a hat from defendant’s apartment that night, outside the bedroom. At trial, however, Walczak testified that the shoe and boxer shorts were found inside the bedroom, and that the hat was discovered at the threshold to the bedroom. Detective Sean Keane recorded in his police report that, on the evening of the incident, Washington had stated that he had been attacked by defendant as he entered her bedroom without any clothes. At trial, although Keane acknowledged the contents of his report, he was unable to recall whether Washington had in fact made that statement. During deliberations, the jury asked to hear Walczak’s testimony regarding where he found Washington’s clothing. Defendant was acquitted of the first-degree assault counts and convicted of one count of second-degree assault.

Defendant subsequently filed a motion to vacate the judgment of conviction pursuant to CPL 440.10. In his affirmation, her new counsel alleged that, following defendant’s conviction, he learned that Washington was an informant for the Albany Police Department. Defendant argued that the People’s failure to disclose this information to the defense required a new trial on both newly discovered evidence grounds and Brady grounds. The People did not dispute defendant’s factual allegation that Washington had acted as an informant for the Albany Police Department on prior occasions. Instead, they responded that Washington was not an informant "in this case,” and that the trial prosecutor had no personal knowledge of prior instances in which Washington provided information to the police.

The motion court summarily denied defendant’s motion, holding that Washington’s status as a police informant did not constitute newly discovered evidence. Defendant appealed from both the denial of her CPL 440.10 motion and the judgment of conviction, and the Appellate Division affirmed. Neither the motion court nor the Appellate Division addressed whether Washington’s history as a police informant constituted Brady material. Because we conclude it does, we now reverse.

In Brady v Maryland (373 US 83), the Supreme Court held that the prosecution has an affirmative duty to disclose to the defense evidence in its possession that is both favorable to the defense and material to guilt or punishment. New York has long recognized this prosecutorial duty (see, e.g., People v Savvides, 1 NY2d 554), and the failure to disclose Brady material violates a defendant’s constitutional right to due process.

As a preliminary matter, defendant sufficiently apprised the motion court of the nature of her Brady claim by urging that Washington’s newly discovered status as a police informant was exculpatory material that should have been disclosed in response to her pretrial request for all Brady and impeachment material, citing Giglio v United States (405 US 150) and United States v Bagley (473 US 667). Having failed to dispute defendant’s factual allegation that Washington operated as a police informant, the People have impliedly conceded the truthfulness of that allegation (see, e.g., People v Ciaccio, 47 NY2d 431, 438; see also, People v Gruden, 42 NY2d 214, 216 ["(n)ormally what is not disputed is deemed to be conceded”]). Consequently, if Washington’s status as a police informant constituted Brady material, the trial court was obligated to grant defendant’s CPL 440.10 motion (see, CPL 440.30 [3]; People v Gruden, supra, at 215-216).

Manifestly, Washington’s status as a police informant was evidence favorable to the defense here. Specifically, the reports prepared by Detective Keane and Officer Walczak confirmed defendant’s claim that Washington was already undressed when he entered her bedroom. Nevertheless, at trial both officers supported Washington’s version of events— Walczak contradicted his report and testified that Washington’s boxer shorts and shoe were discovered inside defendant’s bedroom, and Keane could no longer recall whether Washington had stated that he entered defendant’s bedroom without any clothing. Had defendant been armed with the knowledge that Washington was an informant for the same police department that employed Keane and Walczak, she could have presented the jury with a motive for them to favor Washington. Like evidence tending to affect credibility, evidence establishing such a motive for prosecution witnesses to corroborate the complainant falls within the ambit of the Brady rule (see, Giglio v United States, 405 US 150, 154, supra; People v Novoa, 70 NY2d 490, 496). Additionally, that Washington had previously operated as a police informant would have provided the defense with an explanation for the decision by the police to disbelieve, and subsequently to arrest, defendant — who promptly notified 911 following the incident — as opposed to Washington.

The People’s failure to disclose this favorable evidence to the defense requires reversal, however, only if the evidence was material. Defendant argues that her pretrial request for "any deals, promises or agreements entered into by the People or any agent thereof and any prosecution witness” encompassed the giving of information by a prosecution witness to an agent of the People and implicitly included agreements unrelated to defendant’s case. Thus, defendant contends that it constituted a specific request for the undisclosed evidence at issue, thereby triggering the less stringent "reasonable possibility” materiality standard articulated in People v Vilardi (76 NY2d 67). Even assuming that this is not a "specific request” case, however, the undisclosed evidence must be deemed material because there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different (People v Chin, 67 NY2d 22, 33; People v Smith, 63 NY2d 41, 67, cert denied 469 US 1227).

The outcome of this case turned on whether the jury believed Washington’s account of an unprovoked attack or defendant’s claim that Washington entered the bedroom naked planning to rape her. Whether Washington undressed inside or outside the bedroom constituted a critical issue in this close credibility contest. Washington’s status as a police informant provided the defense with an explanation for Keane’s and Walczak’s switch to a version of the facts that supported Washington’s contention that he undressed inside the bedroom. Tellingly, during deliberations the jury focused on this aspect of Walczak’s trial testimony — it asked for a readback of his testimony regarding where Washington’s clothing was discovered.

Also of central importance to the defense in this case was the argument that Washington’s reluctance to go to the hospital or the police after he was allegedly brutally victimized by defendant evidenced his consciousness of guilt and undermined his credibility. In summation, the prosecutor explained Washington’s behavior by arguing that, because of his criminal record, Washington did not "expect justice from the system”:

"[M]aybe [Fred Washington] didn’t want to go to the hospital because he’s thinking the cops are going to think I did something wrong, this looks bad. You know, I didn’t do anything but hey, the cops know me and maybe once a criminal, always a criminal, and you know, I didn’t do anything, but hey, I’ve done things in the past
* * *
"You know, I’ve been on the other side of the criminal justice system. I’ve been arrested and the cops aren’t my friends” (emphasis added).

Evidence that Washington had, in fact, provided the police with information on prior occasions would have effectively refuted the prosecutor’s proffered justification for Washington’s behavior. Indeed, had the jury been aware that Washington had a relationship with the local police, his efforts to circumvent police discovery might have appeared even more suspicious.

Under these circumstances, Washington’s history as a police informant was both favorable and material to the defense, and the People’s failure to disclose this information to the defense violated defendant’s constitutional right to due process. The People’s reliance in their opposition papers on the trial prosecutor’s lack of personal knowledge regarding any instances in which Washington had operated as an informant is unavailing. The mandate of Brady extends beyond any particular prosecutor’s actual knowledge (see, e.g., Giglio v United States, 405 US 150, supra [nondisclosure of promise made to witness by another prosecutor in trial prosecutor’s office, which promise was not known to trial prosecutor]). Furthermore, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police” (Kyles v Whitley, 514 US —, 115 S Ct 1555, 1567). The People therefore were not relieved of their obligation to turn over Brady material by the trial prosecutor’s failure to discover that the police were in possession of exculpatory information (see, People v Simmons, 36 NY2d 126, 132 ["(n)egligent, as well as deliberate, nondisclosure may deny due process”]).

In light of our conclusion that the People’s nondisclosure of Washington’s status as a police informant violated defendant’s right to due process, we need not reach defendant’s remaining contentions.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed without prejudice to an application by the People for leave to resubmit the charge of , assault in the second degree (People v Mayo, 48 NY2d 245).

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order reversed, etc.