author: Bellacosa, J.

text:
    [666 NE2d 1339, 644 NYS2d 466]
    The People of the State of New York, Respondent, v Basheer Hameed, Also Known as James Dixon York, and Abdul Majid, Also Known as Anthony LaBorde, Appellants.
    Argued May 2, 1996;
    decided June 5, 1996

      POINTS OF COUNSEL

      Mark B. Gombiner, Brooklyn, and Kunstler and Kuby, New York City (Ronald L. Kuby of counsel), for appellants.
    I. The refusal to allow defense counsel to cross-examine the prosecutor at the postverdict Batson hearing held before a Judge who did not preside over the voir dire deprived defendants of a fair hearing, violated their State and Federal constitutional rights to due process, confrontation, and the assistance of counsel and was an abuse of discretion. (Batson v Kentucky, 476 US 79;
      Hernandez v New York, 500 US 352; People v Allen, 86 NY2d 101; People v Scott, 70 NY2d 420; United States v City of Black Jack, 508 F2d 1179, 422 US 1042; Pointer v Texas, 380 US 400; Davis v Alaska, 415 US 308; Goldberg v Kelly, 397 US 254; People ex rel. McGee v Walters, 62 NY2d 317; Ohio v Roberts, 448 US 56.) II. Defendants were denied their rights to counsel and to be present by the court’s in camera communication with the jury foreperson at which (a) legal instructions regarding sequestration were delivered, and (b) the fitness for continued service of at least one juror was evaluated. (People v Torres, 72 NY2d 1007; People v Ciaccio, 47 NY2d 431; People v Bonaparte, 78 NY2d 26; People v Darby, 75 NY2d 449; People ex rel. Lupo v Fay, 13 NY2d 253; People v Ford, 78 NY2d 878; People v Pagan, 45 NY2d 725; People v Aguilera, 82 NY2d 23; People v Mullen, 44 NY2d 1; People v Aksoy, 191 AD2d 271.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Andrew L. Zwerling of counsel), for respondent.
    I. Defendants failed to establish a prima facie case of discrimination, and therefore were not entitled to a Batson hearing in the first instance. (People v Childress, 81 NY2d 263; People v Allen, 86 NY2d 101; Batson v Kentucky, 476 US 79; People v Jenkins, 84 NY2d 1001; People v Kern, 75 NY2d 638; People v McCoy, 210 AD2d 508; People v Stiff, 206 AD2d 235; United States v Stewart, 65 F3d 918; People v Bolling, 79 NY2d 317.) II. The lower court properly exercised its discretion in conducting the Batson hearing. (People v Olivo, 52 NY2d 309; People v Clendinen, 173 AD2d 366; People v Smith, 81 NY2d 875; People v Childress, 81 NY2d 263; People v Kinchen, 60 NY2d 772; People v Gooden, 151 AD2d 773; People v Williams, 6 NY2d 18; People v Billups, 132 AD2d 612; People v Williams, 81 NY2d 303; People v Trinidad, 177 AD2d 286.) III. Defendants were not deprived of their statutory right to be present or their right to counsel. (People v Mehmedi, 69 NY2d 795; People v Torres, 72 NY2d 1007; People v Ciaccio, 47 NY2d 431; People v Sprowal, 84 NY2d 113; People v Morales, 80 NY2d 450; People v Bonaparte, 78 NY2d 26; People v Guadalupe, 202 AD2d 334, 83 NY2d 1004; United States v Gagnon, 470 US 522; People v Mullen, 44 NY2d 1; People ex rel. Lupo v Fay, 13 NY2d 253.)
   OPINION OF THE COURT

Bellacosa, J.

The two legal issues emanating from this murder conviction after a third jury trial are whether (1) the Hearing Justice, at a postjudgment Batson remittal (see, Batson v Kentucky, 476 US 79) to inquire into the prosecutor’s peremptory jury strikes, was required to give the defense a full adversarial cross-examination opportunity as to the trial prosecutors who, as desired by the Hearing Justice, gave their Batson explanations under oath; and (2) the Trial Justice’s discussion with the jury foreperson alone concerning some sequestration details violated defendants’ right to presence or to counsel.

After the remittal hearing and findings were completed at Supreme Court, the Appellate Division ruled on the entire appeal, found no errors and affirmed the judgments of conviction. A Judge of this Court granted leave to appeal and we now affirm.

L

On the morning of April 16, 1981, Police Officers Richard Rainey and John Scarangella pulled over a van. The two defendants immediately left the vehicle, approached the patrol car and fired into the car, hitting both officers. Officer Rainey survived to testify and Officer Scarangella died two weeks after the shooting.

At their first trial, defendants were convicted of attempted murder in the second degree for the shooting of Officer Rainey. The jury was unable to reach a verdict on the murder in the second degree count relating to Officer Scarangella and a mistrial was declared in that respect. The second trial, on the murder charge alone, also resulted in a mistrial. At the third trial in 1986, the one at issue here, both defendants were convicted of the murder of Officer Scarangella.

The Appellate Division initially affirmed the convictions (178 AD2d 546). Then, upon reargument, the Appellate Division vacated the affirmance, ordered the appeal held in abeyance, and remitted the case to Supreme Court, Queens County, for a Batson hearing (see, Batson v Kentucky, 476 US 79, supra), at which the prosecution would have to justify its peremptory challenges with race-neutral reasons (183 AD2d 847).

A different Justice presided at the hearing than at the trial. To assist the court’s task and responsibility in connection with this hearing, the court directed the prosecutors to testify under oath; the defense was likewise to present its witnesses under oath. The court foreclosed traditional cross-examination of those testifying and, instead, offered the parties the opportunity to submit questions in writing, which the court would then pose to the witnesses.

Three witnesses testified on the prosecution side: the two Assistant District Attorneys who tried the case for the People, and one prosecution investigator. Before any testimony was taken, the prosecutors turned over all written voir dire notes and materials to the defense voluntarily. While defense counsel submitted written questions to be asked of the investigator, they refused to do so with respect to the prosecuting attorneys. As to them, the defense team insisted on an opportunity for full, customary, lawyer-to-witness oral cross-examination. The court denied this request.

The lead trial prosecutor testified as to his race-neutral reasons for the peremptory challenges of 12 African-American jurors and two African-American alternate jurors. As to four of these, the defense conceded before the hearing court that the proffered reasons were "arguably race-neutral.” The precise reasons proffered and whether the prosecution and defense carried their respective burdens are not at issue here. Rather, the hearing court’s decision not to allow the defense to cross-examine the testifying prosecutors is the first and primary prong of this appeal.

In a 66-page opinion containing findings of fact and conclusions of law after a hearing held intermittently over three months, the court concluded that the prosecutor presented race-neutral explanations that were nonpretextual. The court found that the lead prosecutor’s testimony was credible, "straightforward and nonevasive.” The Appellate Division’s ultimate upholding of the guilty verdicts — now before us— sustained the hearing court’s findings and rejected the cross-examination argument as "without merit” (212 AD2d 728, 729).

II

Defendants urge that the hearing court’s refusal to allow customary, trial-type cross-examination of the prosecutors at the postverdict Batson hearing deprived them of due process of law and their Sixth Amendment right to confront witnesses (US Const 6th, 14th Amends; see also, NY Const, art I, § 6). As to the due process claim, they argue that a full-blown evidentiary hearing is necessary to ensure a fair proceeding and to satisfy the goals of Batson v Kentucky (476 US 79, supra). They further argue that a Confrontation Clause violation also derives from the refusal to allow cross-examination at a Bat-son inquiry. We disagree with both contentions.

This Court and the United States Supreme Court have settled on a three-step procedure governing trial court review of claimed discrimination in the exercise of peremptory challenges as part of jury selection (see, People v Payne, 88 NY2d 172 ; People v Allen, 86 NY2d 101; see also, Purkett v Elem, 514 US 765, 115 S Ct 1769; Hernandez v New York, 500 US 352, affg 75 NY2d 350). In cases such as the present one, the defense must set forth a prima facie basis of discrimination, at which point the prosecution must come forward with facially race-neutral reasons for its challenged peremptory strikes (People v Payne, supra). The Trial Judge must ultimately determine whether the proffered reasons are pretextual, the burden of persuasion resting on the challenger to the peremptory strike (id.).

In none of the many cases interpreting the Batson protocols have either this Court or the Supreme Court ever imposed any particular form of procedure for considering Batson challenges. Instead, the actual conduct of the inquiry has been placed within the sound discretion and molding of the trial courts (see, People v Hernandez, 75 NY2d 350, 357, affd 500 US 352, supra; Batson v Kentucky, supra, 476 US, at 100), as long as the substantive principles are satisfied (People v Payne, supra; People v Allen, 86 NY2d 101, supra; see also, United States v Clemons, 941 F2d 321, 323-324).

We are satisfied that as a general proposition examination under oath of any individuals in these matters is not compelled. Indeed, the vast majority of courts in other jurisdictions that have specifically been asked to impose such a requirement have declined to do so (see, e.g., United States v Jiminez, 983 F2d 1020, 1024, cert denied 510 US 925; United States v Tindle, 860 F2d 125, 130, cert denied 490 US 1114; United States v Garrison, 849 F2d 103, 106, cert denied 488 US 996; Gray v State, 317 Md 250, 258-260, 562 A2d 1278, 1282-1283; State v Jackson, 322 NC 251, 257-258, 368 SE2d 838, 842, cert denied 490 US 1110; State v Powers, 92 Ohio App 3d 400, 409, 635 NE2d 1298, 1304, cert denied — US —, 115 S Ct 366; but see, e.g., Williams v State, 767 SW2d 872, 874 [Tex App]). We agree with the Supreme Court of North Carolina that "[t]he presiding judges are capable of passing on the credibility of prosecuting attorneys without the benefit of cross-examination” (State v Jackson, supra, 322 NC, at 258, 368 SE2d, at 842; cf., People v Allen, 86 NY2d 101, 105, supra [postverdict Batson hearing limited to the proffer of race-neutral reason by prosecutor and opportunity for defendant to rebut]).

In fact, the major doctrinal conflict in this area is not about allowing cross-examination relating to the exercise of peremptory challenges. Rather, the tension is between "those [courts] that recommend an adversary proceeding of some type [and] those that permit the prosecutor’s explanation to be received in camera and ex parte” (Gray v State, 317 Md 250, 257, 562 A2d 1278, 1281, supra; compare, United States v Tucker, 836 F2d 334, 340 [7th Cir] [in camera proffer permissible], cert denied sub nom. Bell v United States, 488 US 855, and United States v Davis, 809 F2d 1194, 1201 [6th Cir] [same], cert denied 483 US 1007, with United States v Thompson, 827 F2d 1254, 1258-1259 [9th Cir] [adversarial proceeding necessary in adjudicating Batson claims]). This Court has never sanctioned an ex parte procedure and has already resolved the question in favor of an open court exchange between the competing camps, with appropriate opportunity for input from both sides to make a proper record and to assist the trial court in its singular adjudicative responsibility and supervision of the jury selection process (People v Payne, supra).

We perceive no sound or compelling reason to impose new, stringent, procedural requirements for Batson hearings, whether they are held before trial or, as here, after trial. To be sure, "the disruption to a trial which could occur if an attorney in a case were called as a witness” (State v Jackson, 322 NC 251, 258, 368 SE2d 838, 842, supra) might be less after the trial has been completed and the verdict rendered, but that is not determinative of a constitutional imperative. Importantly, prosecutors are officers of the court, with a corresponding "unqualified duty of scrupulous candor that rests upon government counsel” (Shotwell Mfg. Co. v United States, 371 US 341, 358, reh denied 372 US 950). Generally, trial courts should thus be entitled to rely on the prosecutors’ open court, on the record representations, without the need of a formal oath, either before or after the rendition of the verdict (see, Burns v Windsor Ins. Co., 31 F3d 1092, 1095, n 5 ["The duty of candor goes beyond the moral duty imposed on counsel by ethical codes or good conscience”]; Code of Professional Responsibility DR 7-102 [22 NYCRR 1200.33]). As such, we see "no reason why the defendant should be allowed to examine a prosecuting attorney at a post trial hearing if he could not do so at trial” (State v Jackson, supra, 322 NC, at 258, 368 SE2d, at 842; see also, State v Powers, supra, 92 Ohio App, at 409, n 2, 635 NE2d, at 1304, n 2).

Finally, we reject the notion that cross-examination of the prosecutor was necessary because this Hearing Justice sensed a need or preference to have the prosecutors testify before him under oath in this case, with its unusual procedural history and circumstance. Certainly, the hearing court went beyond the requirements of Batson and its progeny by taking sworn testimony from the two trial prosecutors and one investigator. But this was a particularly sensitive case within a very unusual procedural framework before a Justice different from the Trial Justice; as such, the Hearing Justice did not observe the participants at the original trial voir dire, so there was a particularly compelling need and feature, as he saw it, for sworn statements.

The hearing court should not be faulted for taking extra measures, nor should it now be found to have lapsed into error for not having gone even further. This is especially so since the hearing court was not constitutionally or otherwise required to have taken even the first extra precaution. It makes no sense to adopt such an unwise development and disincentive against trial courts structuring Batson hearings and exercising their discretion in favor of additional measures suitable to a particular case and circumstances.

The defendants’ additional argument in this regard, that the failure to allow cross-examination of the prosecutors in this type of hearing violates their right to confront witnesses, finds no support in any authorities or, analytically, in the nature of these matters (US Const 6th, 14th Amends; see also, NY Const, art I, § 6). Typically, "the right to confrontation is a trial right” available against witnesses at trial (Pennsylvania v Ritchie, 480 US 39, 52; see also, Barber v Page, 390 US 719, 725). We are unaware of any generalized "right to the adversarial process” that would support the claim as advanced here.

Specifically, the prosecutors who testified at the Batson hearing in this case were not testifying as witnesses "against” the defendants, but were instead explaining and justifying their own professional conduct, undertaken previously at a pretrial proceeding, to a Judge as the sole adjudicator of such matters. Defendants’ rights under the Confrontation Clause were in no way implicated or compromised by the limitation the Hearing Justice placed on traditional cross-examination in these circumstances, noting additionally the court’s allowance of flexible, realistic alternatives.

m.

Defendants’ second appellate issue relates to a discussion between the Trial Justice and the jury foreperson concerning some details of jury sequestration during deliberations. This conference occurred during the summation portion of the trial and before deliberations began. The claimed violations derive from the defendants’ right to be personally present at material stages of trial under CPL 260.20 and 310.30, as well as their right to the assistance of counsel at trial (see, People v Hilliard, 73 NY2d 584, 586). The latter issue is keyed to the assertion that the Trial Justice, in effect, "instructed” the jury outside the presence of the defendants and defense counsel.

During a recess in the prosecution summation, counsel for defendant Hameed asked the trial court to "make some inquiry” of a juror who had reflected discontent with a statement made by the court on the previous day. In response, the Trial Justice stated, "The Court already has,” and added that the juror’s "concern was that he be able to attend church services on Sunday.” The court then elaborated:

"[H]e has been advised that he will have no difficulty in attending services and we will make the necessary arrangements.
"He was also concerned about having to be sequestered over the weekend, but all the other jurors are concerned about that, too.
"I also advised them that, with respect to that, that is something that has to happen. There is nothing we can do about it.”

Neither defendant objected to this information at this point and in this form. Counsel for defendant Hameed, however, asked the court to instruct the entire jury, as to sequestration, "that nothing should stand in their way to a full deliberation.” In response, the Trial Justice attempted to clarify what exactly he had done earlier in this regard: "I have already instructed them with respect to that. It has already been done” in that "I had the * * * Forelady of the * * * Jury up in my chambers.” The Justice added that the discussion had happened "a few moments ago and we went over the entire area, all those areas.” Defense counsel objected to the court having held this unrecorded, ex parte discussion with only the jury foreperson.

Although no stenographic record of the trial court’s meeting with the foreperson was made, the cited portions of the colloquy with counsel demonstrate that the statements the defendants now claim amounted to an "instruction” may properly be characterized as merely ministerial features of the sequestration requirement. While the Trial Justice’s actions in this case in 1986 are not a model of preferred practice, no discernible prejudicial error is evident from the handling of these essentially ministerial matters, wholly unrelated to the substantive resolution of the case.

The dispositive inquiry ultimately focuses on whether the matter discussed was merely ministerial (see, People v Bonaparte, 78 NY2d 26, 31) and, thus, "wholly unrelated to the substantive legal or factual issues of the trial” (People v Harris, 76 NY2d 810, 812). We are satisfied on this record that the challenged discussion in this case bore no substantial relationship to the defendants’ opportunity to defend against the charges (id., at 812; see, People v Bonaparte, supra; People v Ford, 78 NY2d 878, 880; see also, People v Darby, 75 NY2d 449, 454).

All aspects of defendants’ arguments have been considered, and we conclude that they are without force or merit and that an affirmance of the ruling upholding the convictions is proper and warranted.

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

Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Ciparick concur.

Order affirmed.


source: Caselaw Access Project

author: Ciparick, J.

license: Public Domain

text:
    [666 NE2d 1344, 644 NYS2d 471]
    In the Matter of Timothy Drew, as Local President of the Schenectady County Office of Court Administration Local 333 of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, et al., Respondents, v Schenectady County et al., Appellants, and Norma Meacham, as Director of Employee Relations of the Office of Court Administration, et al., Respondents.
    Argued April 24, 1996;
    decided June 5, 1996

      POINTS OF COUNSEL

      Nicholas E. Tishler, Schenectady, Thomas B. Hayner and Robert A. De Paula for appellants.
    I. The position taken by the court respondents was not entitled to judicial deference. (Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166; Corkum v Bartlett, 46 NY2d 424; Matter of Levine v Whalen, 39 NY2d 510; Matter of Morgenthau v Cooke, 85 AD2d 463; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Florida v United States, 292 US 1; Rochester Tel. Corp. v United States, 307 US 125; South Chicago Co. v Bassett, 309 US 251; Matter of Judd v Constantine, 153 AD2d 270.) II. Viewed in its proper context, Judiciary Law § 39 (3) (a) does not apply to employees of the courts and court-related agencies. (Board v Hearst Publs., 322 US 111; Montreuil v Board of Estimate, 10 AD2d 266.) III. The judgment appealed from constitutes impermissible judicial legislation and should be reversed.

      Janna Pfluger, Albany, and Nancy E. Hoffman for Timothy Drew and others, respondents.
    The courts below correctly found that free, accessible and convenient parking constitutes "goods, services and facilities” within the meaning of Judiciary Law § 39 (3) (a). (Matter of Scoralick v Milonas, 207 AD2d 159; Ostrer v Schenck, 41 NY2d 782; Matter of Howard v Wyman, 28 NY2d 434; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)

      John Eiseman, New York City, and Michael Colodner for Norma Meacham and others, respondents.
    Schenectady County is required by statute to continue to provide free, convenient and accessible parking to all court employees in that County. (Matter of 172 E. 122 St. Tenants Assn. v Schwarz, 73 NY2d 340; Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166.)
   OPINION OF THE COURT

Ciparick, J.

Judiciary Law § 39 (3) (a) requires a political subdivision, such as respondent Schenectady County (the County), to furnish all "goods, services and facilities” that the State did not assume under the provisions of the Unified Court Budget Act of 1976. On this appeal, we must determine whether the term "facilities” as used in Judiciary Law § 39 (3) (a) includes parking for court employees. For the reasons that follow, we hold that it should be so construed.

To coincide with the completion of a jail on the sites formerly used for parking facilities, the County implemented new rules effective April 12, 1993 governing parking for employees of respondent New York State Unified Court System (Unified Court System) who work in the Schenectady County office building and the judicial building. The new rules eliminated the permit-designated spots on the previously vacant lots adjacent to these County buildings for all employees except for 13 individuals who were employees of the County as of April 1, 1977, the date on which court personnel employed and paid by the local political subdivisions were transferred to a consolidated payroll administered by the State (see, Unified Court Budget Act of 1976, L 1976, ch 966 [codified at Judiciary Law § 39]).

Petitioners, Unified Court System employees who have lost their County parking privileges, instituted this CPLR article 78 proceeding for a judgment declaring that respondents violated Judiciary Law § 39 (3) (a) and (6) (a) by failing to continuously provide them with free parking facilities, and enjoining respondents to cease operation of the new parking system and reinstate the former parking permit facilities. Petitioners assert that while they agreed to an interim parking policy to accommodate the construction of the jail, it was understood that this agreement was effective only during the construction period and once the jail was built the former parking permit system would be reinstated. However, petitioners contend that the County reneged on the agreement and, in violation of Judiciary Law § 39, adopted a new, arbitrary and capricious parking system.

Respondents Unified Court System, the Director of Employee Relations of the Office of Court Administration, and the Chief Administrator of the Unified Court System (collectively, the court respondents) agree with petitioners that the County violated the obligation imposed upon it by Judiciary Law § 39 (3) (a) to provide all "goods, services and facilities” furnished by the County prior to enactment of the Unified Court Budget Act. They also assert that since the County provided petitioners with free parking facilities prior to the effective date of the Unified Court Budget Act, Judiciary Law § 39 (3) (a) mandates that the County maintain the same type of facilities for all Unified Court System employees, regardless of their hire date, as this obligation was not expressly assumed by the State under Judiciary Law § 39 (2). The court respondents interposed a cross claim seeking to compel the County to continue providing "free, convenient and accessible parking” to all Unified Court System employees in the County.

The County concedes that the phrase "goods, services and facilities” contained in section 39 (3) (a) includes some form of parking but argues that the real question is for whom such "goods, services and facilities” are intended: the general public or court employees. It is the position of the County that when section 39 is read as a whole, it is apparent that subdivision (3) (a) refers to institutional facilities and services provided as an incidence of court operations, and that matters regarding the employees of the courts are addressed in subdivision (6) (a), which refers to "salaries, wages, hours and other terms and conditions of employment.” The County asserts that under the express language of section 39 (6) (a), the subject employees are only entitled to those "terms and conditions of employment” that were provided "pursuant to any law or contract in effect immediately prior to” the effective date of the Unified Court Budget Act, and because no law or contract granted petitioners free parking in or before 1977, the County is not legally obligated to provide such parking. The County contends that the Rules of the Chief Judge support an interpretation of parking as a term and condition of employment, rather than as a facility, because the rules impart that the term "facilities” refers to court services provided to members of the public who are "court users.”

Supreme Court granted the petition, finding that the "clear mandate of Judiciary Law section 39 (3) (a) is that all goods, services and facilities provided by the County prior to State takeover of the Courts * * * shall continue to be furnished[ ] and suitable additional facilities supplied as the need arises for them.” Supreme Court specifically determined that free, accessible and convenient parking falls within the scope of section 39 (3) (a) and that the April 12, 1993 parking policy violated this provision. The Appellate Division affirmed, with two Justices dissenting (see, Matter of Drew v Schenectady County, 212 AD2d 177). The County respondents appeal as a matter of right based on the two-Justice dissent, which squarely presents the statutory interpretation question whether parking is a "facility” within the ambit of Judiciary Law § 39 (3) (a) (see, CPLR 5601 [a]). We conclude that the employee parking eliminated by the County in 1993 constitutes a court facility that the County was and is obligated to furnish pursuant to Judiciary Law § 39 (3) (a), and therefore affirm the order of the Appellate Division.

When the interpretation of a statute is one of "pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency” and the legal interpretation is ultimately the court’s responsibility (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459; see also, Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166, 173). In construing Judiciary Law § 39 (3) (a), as with any statute, we apply the basic rule that "[w]ords of ordinary import in a statute are to be given their usual and commonly understood meaning, unless it is clear from the statutory language that a different meaning was intended” (We’re Assocs. Co. v Cohen, Stracher & Bloom, 65 NY2d 148, 151).

Judiciary Law § 39 (3) (a) states, in pertinent part, that

"Notwithstanding any other provision of law, all goods, services and facilities presently furnished and paid for by any political subdivision to the courts and court-related agencies * * * not included in that portion of the budget of the political subdivision used in the computation of the amounts set forth in subdivision two of this section, shall continue to be furnished and paid for by the political subdivision. Each political subdivision shall also be responsible for supplying such additional facilities suitable and sufficient for the transaction of business as may become needed after [August 5, 1976].”

Applying the general rules set forth above, the plain language of this subdivision encompasses all court facilities used in and for the operation of the court, which includes parking, a fact even the County acknowledges (see, Public Authorities Law § 1676 [25] ["term 'court facilities’ shall mean facilities suitable and sufficient for the transaction of businessQ * * * any other necessary or desirable facilities incidental to the operation or administration of the unified court system, fixtures, furnishings or equipment in connection therewith and buildings and improvements used for the foregoing”]). This provision was incorporated in the Unified Court Budget Act to ensure that even though the State assumed control of the court system’s budget, the localities retained responsibility for maintaining all court facilities in their jurisdictions which they previously financed and furnished (see, Judiciary Law § 39 [3] [a]). By implementing a new parking system that eliminated the free parking facilities it previously furnished to petitioners, the County violated the statutory mandate.

It is of no consequence that access to the free parking facilities is incidental to petitioners’ employment. Indeed, it would contradict the express statutory directive of section 39 (3) (a) to construe parking as a right that must have been negotiated as a term or condition of employment under section 39 (6) (a), as propounded by the County. Employee parking must be maintained because it comprises part of the court facilities the County is charged with operating under Judiciary Law § 39 (3) (a), not a contractual right of individual employees.

We are not persuaded by the County’s construction of the term facilities to mean "public” parking for general "court users.” The County’s reliance on Guideline V.8 of the Guidelines for New York State Court Facilities (22 NYCRR 34.0 [V.8]) to support this interpretation is misplaced because this guideline specifically addresses "planning” and "designing” a new courthouse, suggesting that "site layout should, where feasible, take into account parking needs of court users” (see also, Public Authorities Law § 1680-c [3]). Whether court users should be construed broadly or not is irrelevant given that until 1993 the County provided free parking facilities to all court employees, including petitioners. By providing such facilities, the County established its continuing obligation under Judiciary Law § 39 (3) (a) to provide the same type of parking facilities to all court employees (see also, Judiciary Law § 39-a).

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

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

Order affirmed, with costs.


text:
    [666 NE2d 1348, 644 NYS2d 475]
    The People of the State of New York, Respondent, v Raymond Kelly, Appellant. The People of the State of New York, Respondent, v Alphonso White, Appellant. The People of the State of New York, Respondent, v Charles Brown, Appellant.
    Argued April 25, 1996;
    decided June 6, 1996

      POINTS OF COUNSEL

      Susan J. Horwitz, New York City, and Daniel L. Greenberg for appellants in the three above-entitled actions.
    The prosecution’s failure to disclose prior statements of trial witnesses which were in the possession of the State Division of Parole, a law enforcement agency, violated the Rosario rule as a matter of law. (People v Washington, 86 NY2d 189; People v Young, 79 NY2d 365; People v Rosario, 9 NY2d 286, 368 US 866; People v
      Jackson, 78 NY2d 638; People v Jones, 70 NY2d 547; People v English, 73 NY2d 20; People v Huntley, 43 NY2d 175; People v Parker, 82 AD2d 661, 57 NY2d 815; People v Moore, 79 AD2d 619; People v Alston, 77 AD2d 906.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Linda Cantoni and Steven J. Chananie of counsel), for respondent in the three above-entitled actions.
    I. Material in the sole possession of a government agency that does not work closely with the local prosecutor is not "within the control of a local prosecutor” and is therefore not Rosario material. (People v Ranghelle, 69 NY2d 56; People v Rosario, 9 NY2d 286, 368 US 866; People v Perez, 65 NY2d 154; People v Consolazio, 40 NY2d 446, 433 US 914; People v Malinsky, 15 NY2d 86; People v Alvarez, 70 NY2d 375; People v Howard, 87 NY2d 940; People v Washington, 86 NY2d 189; People v Flynn, 79 NY2d 879; People v Young, 79 NY2d 365.) II. Defendants’ Rosario claim is procedurally barred because they unjustifiably failed to place facts on the record to support their claim. (People v Friedgood, 58 NY2d 467; People v Ranghelle, 69 NY2d 56; People v Rogelio, 79 NY2d 843; People v Jackson, 78 NY2d 900; People v Rivera, 78 NY2d 901; People v Clark, 160 Misc 2d 81.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Patrick J. Hynes of counsel), for New York County District Attorney, pro se, amicus curiae in the three above entitled actions.
    The People should be deemed to possess a witness statement only if it is actually possessed by a law enforcement agency that assisted the People in the investigation or prosecution of the case on trial and if the local prosecutor has access to it. (People v Malinsky, 15 NY2d 86; People v Ranghelle, 69 NY2d 56; People v Young, 79 NY2d 365; People v Fishman, 72 NY2d 884; People v Tissois, 72 NY2d 75; People v Bailey, 73 NY2d 812; People v Flynn, 79 NY2d 879; People v Washington, 86 NY2d 189; People v Howard, 87 NY2d 940; People v Rutter, 202 AD2d 123.)
   OPINION OF THE COURT

Bellacosa, J.

These three unrelated appeals present a common question: Are interview notes and reports of the State Division of Parole material that prosecutors are required to provide to defense counsel under CPL 240.45 (1) (a) and People v Rosario (9 NY2d 286, cert denied 368 US 866)? Because Parole Division records are not generally in the possession or control of prosecutors and are plainly not so in these three cases under our well-developed precedents, we affirm the orders of the Appellate Division rejecting CPL 440.10 relief in each case.

The material facts and procedural histories of the postconviction proceedings in the three cases are virtually identical. After jury trials, Kelly and Brown were convicted of criminal sale of a controlled substance and related offenses, and White was convicted of rape in the first degree. Supreme Court, in CPL 440.10 proceedings, vacated the judgments based on failures of the prosecution to turn over to the defense records maintained by the New York State Division of Parole. These documents reflected interviews conducted by each defendant’s parole officer of the arresting police officer in the cases at issue here.

In each case, Supreme Court held that the parole officers’ interview notes and reports constituted Rosario material and, thus, should have been provided to the defense at trial for cross-examination purposes (see, CPL 240.45 [1]). The nisi prius courts (Supreme Court, Queens County, in all three cases) relied on the First Department’s decision in People v Fields (146 AD2d 505 [1989], after remand 156 AD2d 225, lv denied 75 NY2d 918). The Appellate Division, in Fields, held that handwritten notes of a witness interview in the actual possession of a State parole officer constituted Rosario material that local prosecution offices were required to acquire and provide to defendants’ lawyers.

The Appellate Division, Second Department, in the instant cases, here by leave to appeal granted by Judges of this Court, reversed the orders vacating the convictions. The Appellate Division reasoned that the records were distinctively those of the Division of Parole, a State administrative agency, and, thus, did not constitute Rosario material, because they were not in the possession or control of the respective prosecutors (see, e.g., People v Kelly, 209 AD2d 436, 438).

CPL 240.45 (1) (a) codified the holding of People v Rosario (9 NY2d 286, supra). The statute requires prosecutors to disclose to the defense (1) "[a]ny written or recorded statement,” (2) "made by a person whom the prosecutor intends to call as a witness at trial,” and (3) "which relates to the subject matter of the witness’s testimony” (CPL 240.45 [1] [a]). While the statute speaks of "[a]ny written or recorded statement,” its scope has been judicially interpreted as limited to circumstances when the trial prosecutor actually has possession or control of requested materials subject to the Rosario rule. This Court has removed from the Rosario reach, for example, prison disciplinary transcripts (People v Howard, 87 NY2d 940, 941), audiotapes made at autopsies by a medical examiner (People v Washington, 86 NY2d 189, 191), reports filed with the Department of Motor Vehicles (People v Flynn, 79 NY2d 879, 882), untranscribed plea minutes (People v Fishman, 72 NY2d 884, 886), and a personal written account of the crime by a crime victim (People v Reedy, 70 NY2d 826, 827).

The principal consideration for determining whether prosecutors have a fairness obligation under Rosario to turn over various materials focuses on whether these items actually are in or subject to the possession or control of the particular prosecution office (People v Flynn, 79 NY2d 879, 882, supra; People v Tissois, 72 NY2d 75, 78; People v Reedy, 70 NY2d 826, 827, supra; see also, People v Howard, 87 NY2d 940, 941, supra). Together with this key feature, the Court has recognized a number of sometimes interrelated factors, including whether the potential cross-examination materials are in the actual possession of what is primarily a law enforcement agency (see, People v Washington, 86 NY2d 189, 192 supra; People v Ranghelle, 69 NY2d 56, 64), whether a compelling reason exists to keep the items confidential (see, People v Tissois, 72 NY2d 75, 78, supra), and whether material not in the actual possession of the prosecutor or an agency whose records may be deemed in the prosecutor’s control is in any event equally accessible to the defendant (see, People v Fishman, 72 NY2d 884, 886, supra).

We are persuaded and satisfied that records of the State Division of Parole should not generally be deemed to be in the control of 62 county prosecutors, nor of any other prosecutorial office subject to the Rosario rule. The records at issue in these cases were initiated and created by parole officers assigned to supervise the released individuals. This role is independent of the police investigations that ensued and supported new criminal charges against the defendants. As such, the parole interview records were "in the possession of a State administrative agency,” which is not "within the control of a local prosecutor” (People v Flynn, 79 NY2d 879, 882, supra; see, Executive Law §§ 259-a, 259-d). This conclusion is not affected by the incidental law enforcement functions that parole officers are authorized to perform (see, CPL 2.10 [23]; see, 9 NYCRR 8004.2).

People v Howard (87 NY2d 940, supra) is instructive. In determining that witness statements given to State corrections officers in prison disciplinary proceedings were not Rosario material, we observed that the State Department of Correctional Services was "at the end of the State’s law enforcement chain” (supra, at 941). The State Division of Parole may also be viewed as generally beyond that "chain.” Ordinarily, therefore, it is outside of the legal or practical control of local prosecutors for Rosario purposes.

Indeed, the Division of Parole here and its counterpart, the Department of Correctional Services, are members of the State Executive Branch family. While both primarily serve agency functions (respectively, the supervision of parolees and prison inmates), they are also charged with respective, ancillary "law enforcement” tasks, but only when individuals under their actual or constructive custodial supervision violate governing rules or commit new crimes. These agencies, thus, do not represent "The People” in the distinctive and customary usage of that term for prosecutorial purposes. Despite their incidental law enforcement function, we decided in Howard not to impute possession of correctional department records to the local prosecutor because of the lack of prosecutorial control. That was the legally dispositive issue there, and it is here as well.

In sum, the prosecutors’ failure to provide these defendants with Division of Parole records does not violate the Rosario rule. To the extent that People v Fields (146 AD2d 505, supra) is to the contrary, it should not be followed.

Accordingly, in each case, the respective order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Ciparick concur.

In each case: Order affirmed.


author: Per Curiam.

text:
    [667 NE2d 307, 644 NYS2d 657]
    Stuart Grabois, in His Fiduciary Capacity as Assistant Director, et al., Plaintiffs-Respondents, v Kay Jones, Defendant-Appellant, and Annie M. Jones, Defendant.
    Decided April 2, 1996

      APPEARANCES OF COUNSEL

      Kay Jones,, defendant-appellant pro se.

      Pryor, Cashman, Sherman & Flynn, New York City (Tom J. Ferber of counsel), for plaintiffs-respondents.
   OPINION OF THE COURT

Per Curiam.

In the exercise of this Court’s discretion under section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), we decline to accept the question certified to us by the United States Court of Appeals for the Second Circuit (77 F3d 574) in this action brought under the Employee Retirement Income Security Act (ERISA): Whether a second spouse whose marriage is. void due to the existence of a prior, undissolved marriage, is nonetheless entitled to some portion of her or his spouse’s death benefits when the second marriage was the result of a formal ceremony, undertaken in good faith, and the second marriage continued until the spouse’s death.

While we have in general accepted questions certified to us by the Second Circuit, various factors militate against discretionary review in the instant case. In particular, we agree with the Second Circuit’s description, in its 500.17 certificate, of the likely rarity of any recurrence of this issue, a distinctive certiorari factor. Furthermore, defendant-appellant appears pro se, defendant-respondent has not submitted a brief and plaintiffs-respondents are mere stakeholders with no interest in this action other than to dispense the death benefits to whomever the Court ultimately directs. Thus, we can expect only limited assistance from the parties in deciding this issue, which may have precedential significance beyond the ERISA context.

Finally, the interplay between Federal and State law in interpreting issues of statutory construction under ERISA is as yet not fully settled. This issue may thus be more appropriate for resolution in the first instance by the Federal courts.

Accordingly, acceptance of the certified question should be declined.

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

Acceptance of certification of question by the United States Court of Appeals for the Second Circuit pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17) declined.


author: Chief Judge Kaye.

text:
    [667 NE2d 308, 644 NYS2d 658]
    The People of the State of New York, Respondent, v Carl Berk, Appellant.
    Argued March 20, 1996;
    decided April 25, 1996

      POINTS OF COUNSEL

      Joel L. Daniels, Buffalo, Linda S. Reynolds and Barbara J. Davies for appellant.
    I. The trial court abused its discretion and violated appellant’s Sixth and Fourteenth Amendment rights to present witnesses by precluding appellant from presenting testimony of a forensic psychologist concerning behavioral patterns of those in traumatic situations. Accordingly, the conviction should be reversed and a new trial granted. (Davis v Alaska, 415 US 308; Chambers v Mississippi, 410 US 284; Washington v Texas, 388 US 14; People v Segal, 54 NY2d 58; People v Copicotto, 50 NY2d 222; Matter of Lee v

      County Ct., 27 NY2d 432; People v Oakes, 168 AD2d 893; People v Burton, 156 AD2d 945; People v Taylor, 75 NY2d 277.) II. The trial court erred in instructing the jury on the duty to retreat as part of its justification charge. Because the proof was overwhelming that the home was appellant’s dwelling, he had no duty to retreat as a matter of law. Accordingly, the erroneous instruction foreclosed the jury from considering the defense, thereby violating appellant’s right to a fair trial. (People v Watts, 57 NY2d 299; People v Torre, 42 NY2d 1036; People v Steele, 26 NY2d 526; People v Emick, 103 AD2d 643; People v Williams, 121 AD2d 145; People v Primus, 178 AD2d 565.)

      Kevin M. Dillon, District Attorney of Erie County, Buffalo (Susan D. Nusbaum and John J. DeFranks of counsel), for respondent.
    I. The trial court properly precluded the calling of a psychologist as a defense witness. (People v Patterson, 39 NY2d 288, 432 US 197; People v Cruickshank, 105 AD2d 325, affd sub nom. People v Dawn Maria C., 67 NY2d 625; People v Rossi, 163 AD2d 660; People v Segal, 54 NY2d 58; People v Sian Mai, 175 AD2d 692, 78 NY2d 1081; People v Tumerman, 133 AD2d 714, 70 NY2d 938, 72 NY2d 867, 485 US 969; People v Oakes, 168 AD2d 893; People v Burton, 156 AD2d 945; People v Bennett, 79 NY2d 464; People v Taylor, 75 NY2d 277.) II. The court’s instructions pertinent to the defense of justification were proper. (People v Reynoso, 73 NY2d 816; People v Watts, 57 NY2d 299; People v Goetz, 68 NY2d 96; People v Collice, 41 NY2d 906; People v Magliato, 68 NY2d 24; People v Miller, 123 AD2d 721; People v Lewis, 64 NY2d 1031; People v Tomlins, 213 NY 240; People v McFadden, 180 AD2d 825; People v Williams, 121 AD2d 145.)
   OPINION OF THE COURT

Chief Judge Kaye.

Upon discovering his wife in bed with another man, defendant fatally shot both of them. On appeal from his convictions for second degree murder and first degree manslaughter, defendant argues that he was deprived of a fair trial by exclusion of expert psychiatric testimony and by the court’s charge regarding justification. We disagree with both contentions.

I.

Shortly after their marriage in 1989, defendant and Virginia Pod Berk began to have marital problems. In October 1992, she initiated divorce proceedings. As a result of their marital discord, defendant spent most evenings at his mother’s house instead of sleeping at their home in Sable Park Court. He did, however, occasionally return to Sable Park Court, where his home office was located.

Defendant also installed an eavesdropping device on their home telephone. On the morning of October 22, 1992, he overheard a telephone conversation between his wife and Police Officer Joseph Valvo, suggesting that the two were having an affair. That evening, defendant went to the Sable Park Court house and found them sitting together in the den. When defendant became upset, his wife insisted that her relationship with Valvo was merely platonic. According to defendant, he ordered Valvo to leave immediately, whereupon Valvo threatened to break his legs.

The following evening, defendant received a telephone call from his wife at his mother’s house. During the conversation, his wife assured him that she was not having an affair with Valvo and said that she needed some time to think about their marriage. They arranged to have brunch that weekend.

Although it was after midnight when their telephone conversation ended, defendant drove to the Sable Park Court home. Upon arriving, he observed Valvo’s car parked in the driveway. Defendant entered the front door, using his key, and climbed the stairs. Hearing sounds emanating from his wife’s bedroom, he retrieved a loaded handgun from his separate bedroom and then walked into her bedroom. When he turned on the light, he saw Valvo and his wife engaged in sexual relations. Defendant fired his gun three times, shooting Valvo in the stomach.

In the meantime, defendant’s wife had escaped to the kitchen, where she called the police. The police operator heard her plead, "don’t kill me,” and a man’s voice — concededly defendant’s — shout, "stop it, stop right there, you son of a bitch, you son of a bitch.” The operator then heard two gunshots. Defendant immediately went to the Amherst police station and surrendered. His wife and Valvo both died from the gunshot wounds.

Defendant was charged with two counts of murder in the second degree. At trial, he admitted shooting Valvo but proffered the defense of justification. According to defendant, he intended only to scare Valvo with the weapon. When he demanded that Valvo leave the house, however, Valvo lunged, allegedly causing defendant to fear for his life. Valvo grabbed defendant’s arm and, during the ensuing struggle, the gun accidentally fired. Although the trial court charged the jury as to the defense of justification, it denied defense counsel’s request to instruct the jury as a matter of law that the Sable Park Court house was defendant’s "dwelling” and that defendant thus had no duty to retreat, leaving that issue to be determined as a matter of fact.

Defendant further conceded that he must have shot Virginia Berk but testified that he had no memory of doing so. With regard to this charge, he relied on the defense of extreme emotional disturbance.

Several weeks after trial commenced, defense counsel for the first time informed the court and prosecutor of his intention to introduce expert testimony. Specifically, counsel sought to call Dr. Charles Ewing, a forensic psychologist, to testify concerning the relationship between memory loss and traumatic events. Dr. Ewing also planned to testify regarding "fight or flight syndrome” which, according to defense counsel, would explain defendant’s decision to exit the house by the most familiar route — through the kitchen to the garage — rather than the front door.

Defense counsel acknowledged that he never filed notice pursuant to CPL 250.10 informing the prosecutor of this evidence. Counsel claimed, however, that he only recently made the final decision to introduce this testimony and that he immediately informed the prosecutor. Counsel also argued that the statutory notice provision was inapplicable, since Dr. Ewing never examined defendant and, thus, the People were not entitled to perform their own examination. The trial court concluded that the proffered testimony fell within CPL 250.10 and that defendant had failed to show good cause for his failure to provide the People with the requisite notice.

Defendant was convicted of first degree manslaughter of Joseph Valvo and second degree murder of Virginia Berk. The Appellate Division affirmed both convictions, concluding that the justification charge and preclusion of the expert testimony were proper. We now affirm.

II.

Under CPL 250.10 (2), psychiatric evidence is not admissible by the defense at trial "unless the defendant serves upon the people and files with the court a written notice of his intention to present psychiatric evidence.” Such notice, moreover, "must be served and filed before trial and not more than thirty days after entry of the plea of not guilty to the indictment” (CPL 250.10 [2]). The trial court, however, may allow late notice to be filed prior to the close of the evidence, where it is in the "interest of justice and for good cause shown” (id.). The statute further permits the People, upon receiving notice of defense intent to present psychiatric evidence, to seek an order directing the defendant to submit to examination by a psychiatrist or psychologist designated by the People (see, CPL 250.10 [3]).

Defendant argues that he was not required to serve the People with notice of his prospective expert testimony because Dr. Ewing never examined defendant and the People were therefore not entitled to conduct an independent examination. According to defendant, CPL 250.10 applies only to psychiatric evidence obtained by means of a psychiatric examination of the defendant. Defendant’s restrictive reading of the statute, however, is not supported by the plain language or the purpose of CPL 250.10.

Prior to 1982, CPL 250.10 required advance notice only of a defendant’s intent to rely upon the insanity defense (see, CPL 250.10 [amended by L 1982, ch 558, § 9]; see also, former Code Crim Pro § 336). In amending CPL 250.10 in 1982, the Legislature expanded the scope of the notice requirement to encompass evidence offered in support of the affirmative defense of extreme emotional disturbance as well as any other defense. Subdivision (1) of the statute now broadly defines "psychiatric evidence” subject to notice as follows:

"(a) Evidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of lack of criminal responsibility by reason of mental disease or defect.
"(b) Evidence of mental disease or defect to be offered by the defendant in connection with the affirmative defense of extreme emotional disturbance * * *
"(c) Evidence of mental disease or defect to be offered by the defendant in connection with any other defense not specified in the preceding paragraphs” (CPL 250.10 [1]).

As explained by the Practice Commentaries, when the Legislature amended section 250.10, "it neglected to unlink the definition of 'psychiatric evidence’ from the term 'mental, disease or defect’; which, as used in criminal actions, has been associated solely with the defense of lack of criminal responsibility” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 250.10, at 331). Thus, Penal Law § 40.15 also employs the phrase "mental disease or defect” in defining the defense of lack of criminal responsibility, or the insanity defense. The Legislature, however, expressly included within the definition of "psychiatric evidence” contained in section 250.10 evidence offered in connection with the affirmative defense of extreme emotional disturbance — "a mental infirmity not arising to the level of insanity” (People v Patterson, 39 NY2d 288, 302, affd 432 US 197).

Clearly, then, the term "mental disease or defect” as used in CPL 250.10 necessarily includes mental infirmities that would not sustain an insanity defense. Nothing in the statutory definition, moreover, limits the pretrial notice requirement to "psychiatric evidence” resulting from examination of the defendant. Rather, the plain language of the statute requires that any evidence regarding a mental disease or defect offered in relation to the defense of extreme emotional disturbance or any other defense be preceded by timely notice to the People. Surely that includes expert testimony regarding the psychological impairment that results from a traumatic experience— such as impaired memory or a trauma syndrome — when such testimony is offered to support the affirmative defense of extreme emotional disturbance, irrespective of whether the expert actually examined the defendant.

This conclusion is reinforced by the purpose of the statutory notice provision: to "prevent disadvantage to the prosecution as a result of surprise” (see, Ronson v Commissioner of Correction, 463 F Supp 97, 103, affd 604 F2d 176). As explained in the Legislative Memoranda accompanying the original notice provision (former Code Crim Pro § 336):

"At present, there is no provision in the Code requiring notice that the defendant intends to present evidence of mental disease or defect. In fact, he may offer such evidence under a plea of not guilty without the specification of insanity and, if the defense is sustained, the jury may acquit. This, obviously, may place the People at an unfair disadvantage in that, surprised by the sudden interposition of this collateral defense, they may have insufficient opportunity to obtain the psychiatric and other evidence necessary to refute it and to establish, as they must, the defendant’s sanity beyond a reasonable doubt. The bill would rectify this situation” (Mem of Commn on Revision of Penal Law and Crim Code following L 1963, ch 595 [reprinted in 1963 McKinney’s Session Laws of NY, at 1986]).

This statement of legislative intent manifestly establishes that the primary aim of the pretrial notice requirement was to ensure the prosecution sufficient opportunity "to obtain the psychiatric and other evidence necessary to refute” the proffered defense of mental infirmity (id.) (emphasis added). In other words, the notice provision was designed to allow the prosecution an opportunity to acquire relevant information from any source — not merely from an independent examination of the defendant — to counter the defense.

Indeed, under the Code, the only authority for the court to order a psychiatric examination of the defendant upon request of the People was contained in a discrete statutory provision. It was not until CPL 250.10 was amended in 1980 that this right was specifically incorporated into the body of the notice statute (see, L 1980, ch 548, § 7).

To be sure, this Court has recognized that the prosecutor’s right to examine the defendant independently where the defendant has raised the issue of mental competence is grounded in principles of fairness and is essential to preserving the integrity of the fact-finding process (see, People v Segal, 54 NY2d 58, 65). Furthermore, the provision for independent examination coupled with the 30-day notice provision enables the People to have defendant examined by their own experts within close temporal proximity to the offense and to any examination by the defense experts, thereby preventing disadvantage to the prosecution in accord with the legislative goal. Pretrial examination by the prosecution further avoids delay during trial, an additional purpose of the current notice statute (see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 250.10, at 332).

Even where mental health evidence did not derive from examination of the defendant, however, advance notice to the People similarly promotes fairness and avoids delay by allowing the prosecution to obtain its own mental health evidence prior to trial. Undeniably, testimony concerning mental impairment or trauma syndrome by an expert who never examined the defendant can be equally, if not more, damaging to the prosecution’s case as testimony from an examining doctor.

Thus, while a primary function of CPL 250.10 is certainly to afford the People an opportunity to conduct their own examination of defendant, the legislative history of CPL 250.10 overwhelmingly establishes that it is not the statute’s exclusive purpose. Inasmuch as the notice requirement was designed to allow the People an opportunity to obtain any mental health evidence necessary to refute a defense of mental infirmity, it follows that it applies to any mental health evidence to be offered by the defendant in connection with such a defense.

Here, defendant sought to introduce expert testimony by a forensic psychologist regarding a trauma syndrome known as "fight or flight” and impairment of memory following traumatic events in connection with his defense of extreme emotional disturbance. This evidence fell within the scope of CPL 250.10 and was inadmissible unless defendant served written notice within 30 days of his plea of not guilty to the indictment. This he failed to do.

Defendant alternatively argues that the trial court’s refusal to allow late notice and introduction of the mental health evidence constituted an abuse of discretion that violated his constitutional right to present a defense. We disagree.

The decision whether to allow a defendant, "[i]n the interest of justice and for good cause shown,” to serve and file late notice of intent to introduce psychiatric evidence is a discretionary determination to be made by the trial court (CPL 250.10 [2]; see, People v Di Donato, 87 NY2d 992). The trial court’s discretion in this matter, however, is not absolute. Exclusion of relevant and probative testimony as a sanction for a defendant’s failure to comply with a statutory notice requirement implicates a defendant’s constitutional right to present witnesses in his own defense (see, US Const 6th, 14th Amends; see also, Ronson v Commissioner of Correction, 604 F2d 176, 178, supra). In making its determination, the trial court must therefore weigh this right against the resultant prejudice to the People from the belated notice.

Certainly, the fact that Dr. Ewing never examined defendant minimized the prejudice to the People here, since they were not deprived of an opportunity to conduct their own pretrial examination shortly after the offense. The People were nonetheless entitled to obtain their own expert to assess and possibly refute Dr. Ewing’s conclusions regarding loss of memory or "fight or flight” trauma. Defendant, moreover, failed to offer any explanation other than indecision for waiting until near the end of trial to notify the court and prosecutor of Dr. Ewing’s testimony.

Under these circumstances, the trial court did not abuse its discretion in precluding the expert psychiatric testimony.

III.

Defendant further contends that it was error for the trial court to refuse to instruct the jury as part of its justification charge that the Sable Park Court residence was defendant’s "dwelling” as a matter of law.

Under certain circumstances, the use of deadly physical force upon another person is lawful, or justified, where the defendant reasonably believed such force necessary to defend against what he or she reasonably believed to be the use or imminent use of deadly physical force by the other person (see, Penal Law § 35.15). This defense is unavailable to a defendant who "knows that he can with complete safety as to himself and others avoid the necessity of [using deadly physical force] by retreating” (Penal Law § 35.15 [2] [a]). A defendant who is "in his dwelling and not the initial aggressor,” however, has no such duty to retreat (Penal Law § 35.15 [2] [a] [i]).

Article 35 of the Penal Law, which addresses the defense of justification, provides no definition of the term "dwelling.” The term is defined for purposes of burglary and related offenses in Penal Law § 140.00 (3) as "a building which is usually occupied by a person lodging therein at night.” The Sable Park Court residence unquestionably met this definition of a dwelling.

In order for defendant to be relieved of the duty to retreat, however, the Sable Park Court home must have been his dwelling (see, Penal Law § 35.15 [2] [a] [i]). Here this constituted a disputed factual question to be decided by the jury. Indeed, there was substantial evidence at trial both supporting and opposing a conclusion that the Sable Park Court home was defendant’s dwelling on the date of the shootings. Consequently, it was not error for the court to deny defendant’s request to instruct the jury that he had no duty to retreat because the residence was his dwelling.

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

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

Order affirmed.

      . Under Penal Law § 40.15,
      "it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either:
      "1. The nature and consequences of such conduct; or
      "2. That such conduct was wrong.”

      . Section 658 of the former Code of Criminal Procedure provided: "If at any time before final judgment it shall appear to the court having jurisdiction of the person of a defendant indicted for a felony or a misdemeanor that there is reasonable ground for believing that such defendant is in such state of idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense, or if the defendant makes a plea of insanity to the indictment, instead of proceeding with the trial, the court, upon its own motion, or that of the district attorney or the defendant, may in its discretion order such defendant to be examined to determine the question of his sanity” (repealed by L 1970, ch 996).

      . We do not reach the People’s unpreserved argument that the proposed "fight or flight” syndrome testimony was inadmissible because defendant failed to establish its relevancy.


author: Smith, J.

text:
    [667 NE2d 313, 644 NYS2d 663]
    Salvatore R. Curiale, as Superintendent of Insurance of the State of New York, as Liquidator of Nassau Insurance Company, Respondent, v Ardra Insurance Company, Ltd., Appellant, et al., Defendants. (And a Third-Party Action.)
    Argued March 28, 1996;
    decided April 30, 1996

      POINTS OF COUNSEL

      Friedman & Kaplan LLP, New York City (Robert D. Kaplan, Daniel Zenkel, Ellen A. Harnick and Robert S. Loigman of counsel), for appellant.
    I. The application of Insurance Law § 1213 (c) to default an insurer that cannot afford to post the required bond violates due process by denying the insurer any opportunity to defend the case against it. (Dean Constr. Co. v Agricultural Ins. Co., 42 Misc 2d 834; T.P.K. Constr. Corp. v Southern Am. Ins. Co., 739 F Supp 213; Chait, Ltd. v La Metropolitana, Compania Nacional De Seguros, 26 Misc 2d 751; Fuentes v Shevin, 407 US 67; Baldwin v Hale, 1 Wall [68 US] 223; North Ga. Finishing v Di-Chem, Inc., 419 US 601; Boddie v Connecticut, 401 US 371; Mathews v Eldridge, 424 US 319; Ace Grain Co. v American Eagle Fire Ins. Co., 95 F Supp 784.) II. The court improperly relieved the liquidator of the obligation to prove his damage claim, and improperly denied Ardra the opportunity to prove that his claim was overstated. (Rokina Opt. Co. v Camera King, 63 NY2d 728; McClelland v Climax Hoisery Mills, 252 NY 347, 253 NY 533; Chew Wah Bing v Sun Wei Assn., 191 AD2d 361, 82 NY2d 886; Wine Antiques v St. Paul Fire & Mar. Ins. Co., 40 AD2d 657; Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568; Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878; Ayala v Boss, 120 Misc 2d 430.)

      Costigan & Berns, P. C., New York City (William F. Costigan and Andrew J. Costigan of counsel), for respondent.
    I. Section 1213 does not violate the United States or New York Constitution. (Travelers Health Assn. v Virginia, 339 US 643; Zacharakis v Bunker Hill Mut. Ins. Co., 281 App Div 487; Horn Silver Min. Co. v New York, 143 US 305; Fuentes v Shevin, 407 US 67; Skandia Am. Reins. Corp. v Schenck, 441 F Supp 715; Dean Constr. Co. v Agricultural Ins. Co., 42 Misc 2d 834; North Ga. Finishing v Di-Chem, Inc., 419 US 601; Sniadach v Family Fin. Corp., 395 US 337; Ace Grain Co. v American Eagle Fire Ins. Co., 95 F Supp 784.) II. Ardra’s default established all elements of liability, including premium payment. (Stratton Group v Sprayregen, 458 F Supp 1216; Rokina Opt. Co. v Camera King, 63 NY2d 728; McClelland v Climax Hosiery Mills, 252 NY 347.)
   OPINION OF THE COURT

Smith, J.

Appellant’s appeal brings two orders of the Appellate Division before this Court for review. The first Appellate Division order, entered March 23, 1993, affirmed an order of the Supreme Court directing that appellant’s answer be stricken unless it posted preanswer security in the amount of $10,351,877.38 pursuant to Insurance Law § 1213 (c) (189 AD2d 217). As to that order, appellant argues that as applied to this case, Insurance Law § 1213 (c) violates the procedural due process guarantees of the Federal Constitution. The second order of the Appellate Division, entered January 12, 1995, affirmed the final judgment entered against appellant (211 AD2d 473). Appellant seeks review of the final judgment and remittal of the case for a new inquest on the ground that relevant evidence pertaining to damages was erroneously excluded at the inquest before the Special Referee. We conclude that Insurance Law § 1213 (c), as applied to defendant, is constitutional, and that the evidence which appellant sought to introduce at the inquest was properly excluded.

Facts and Procedural History

Appellant Ardra Insurance Company, Limited is a Bermuda reinsurance company, owned and controlled by Richard DiLoreto and Jeanne DiLoreto through their holding company, Tiber Holding Corporation. The DiLoretos also owned and controlled the Nassau Insurance Company (Nassau) (189 AD2d 217, 218, supra) which provided various forms of liability and casualty insurance, including policies for medallion taxicabs.

In 1976, Richard DiLoreto decided to create an offshore reinsurance company for the "express purpose of providing reinsurance to Nassau” because Nassau was encountering difficulty obtaining coverage for its medallion taxicab policies from domestic reinsurers. Pursuant to this goal, appellant was incorporated in 1976 and thereafter entered into reinsurance treaties with Nassau.

In 1984, Nassau was adjudged insolvent and the Superintendent of Insurance of the State of New York was appointed to take possession of Nassau’s assets and liquidate the business (Matter of Corcoran [Nassau Ins. Co.], Sup Ct, NY County, June 22, 1984, Cohen, J., index No. 42173/84). Acting as the liquidator of Nassau, the Superintendent of Insurance (Liquidator) commenced an action in April 1985 to recover, inter alla, the reinsurance proceeds under three reinsurance treaties between Nassau and appellant.

One reinsurance treaty, effective as of July 1, 1978 (Agreement I), provided Nassau with coverage for various liability policies, and specifically excluded coverage for policies concerning taxicabs. A second treaty (Agreement II), effective as of January 1, 1980, provided Nassau with excess coverage for policies providing personal injury protection benefits pursuant to New York’s automobile no-fault coverage statute. The third treaty (Agreement III), effective as of December 31, 1979, provided, in relevant part,

"This contract is to indemnify [Nassau] in respect of the net excess liability * * * which may accrue to [Nassau] as a result of any loss or losses which may occur during the currency of this contract under any and all binders, policies and contracts of reinsurance (hereinafter referred to as 'policies’) heretofore or hereafter issued or entered into by or on behalf of [Nassau] and classified by [Nassau] as excess limits automobile bodily injury business in respect of medallion taxicabs.”

After approximately six years of extensive litigation over the arbitrability of this action and various discovery disputes, appellant served an answer to the complaint in January 1991. The Liquidator responded to the answer by informing appellant’s counsel that the answer would be ineffective unless appellant, an unlicensed alien reinsurer, first provided security, pursuant to Insurance Law § 1213, sufficient to cover the payment of any final judgment which may .be rendered. The Liquidator subsequently made a motion to strike appellant’s answer and to enter a default judgment against appellant.

After hearing oral argument on the Liquidator’s motion, Supreme Court determined that appellant was required to post security before filing its answer. The proceedings were adjourned so that the parties could negotiate the amount of security required. Alternatively, the court informed appellant that it could seek a license to do the business of insurance in New York since licensed insurers were not required to post preanswer security. On May 2, 1991, appellant informed Supreme Court that it had not sought and would not be seeking a license to do the business of insurance in New York State, and that appellant could only post $1 million security. Supreme Court found $1 million inadequate to secure payment of any future final judgment and ordered appellant to post security in the amount of $10,351,877.38 within 45 days (Curiale v Ardra Ins. Co., Sup Ct, NY County, May 2, 1991, Moskowitz, J., index No. 9794/85). The court further ordered appellant’s answer struck if appellant failed to post security (id.).

Appellant took an interlocutory appeal to the Appellate Division from the May 2, 1991 order, arguing, inter alla, that Insurance Law § 1213 was unconstitutional as applied. Appellant claimed deprivation of due process because its inability to post the security required by Supreme Court caused a default and thereby allegedly depriving it of property without a hearing. In an order entered March 23, 1993, the Appellate Division affirmed the Supreme Court, reasoning that appellant had voluntarily agreed to comply with the conditions of Insurance Law § 1213 when appellant opted to provide reinsurance in New York State without a license (189 AD2d 217, supra).

Appellant failed to post security and its answer was stricken. Supreme Court subsequently ordered the entry of a default judgment on liability against appellant and referred the case to a Special Referee to determine the amount of paid losses, loss adjustment expenses and statutory interest under Agreements I and III.

During the inquest, appellant did not contest the amount of damages sought under Agreement I but argued that certain claims designated by a P prefix brought by the Liquidator under Agreement III were also covered by reinsurance treaties outside of the complaint. Although appellant conceded that its liability under Agreement III could not be contested, appellant argued that the same claim could not be covered by different reinsurance treaties and that certain P-claims should be excluded as damages. The Special Referee ruled that evidence regarding reinsurance treaties outside of the complaint was irrelevant absent a showing that the Liquidator’s claims did not fall under the agreements on which appellant had been adjudged liable. Supreme Court confirmed the Referee’s report, and a final judgment of $16,351,398.11 was entered against appellant on May 17, 1994.

Appellant appealed the final judgment and argued that it had been erroneously foreclosed from presenting relevant evidence on the issue of damages. The Appellate Division concluded that the evidence had been properly excluded from the inquest because appellant’s default had conclusively established all elements of liability, and the Liquidator had presented evidence that the disputed P-claims fell within Agreement III. The final judgment was affirmed by order dated January 12, 1995 (211 AD2d 473, supra).

Appellant appealed, on constitutional grounds, from the January 12, 1995 order of the Appellate Division, seeking review of the final judgment as well as the March 23, 1993 order (which upheld striking appellant’s answer for failure to post preanswer security pursuant to the Insurance Law). On July 6, 1995, we dismissed that portion of the appeal seeking review of the order affirming the final judgment on the ground that it did not lie as of right (86 NY2d 774). Thereafter, appellant obtained leave to appeal from the January 12, 1995 order from the Appellate Division, which brought both orders before this Court for review.

Constitutionality of Insurance Law § 1213 (c)

Appellant argues that the entry of a default judgment against a litigant who is financially unable to post the preanswer security in the amount set by a trial court unconstitutionally deprives that litigant of due process of law. Appellant contends that its answer should have been accepted and the merits of the Liquidator’s claims litigated, notwithstanding its failure to post the required security, because its private interest and the risk of an erroneous deprivation of its property outweigh the State interest here. We disagree.

"Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty’ or 'property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment” (Mathews v Eldridge, 424 US 319, 332). The level of procedural protection a State must provide in a particular case is not a " 'technical conception with a fixed content’ ” (id., at 334, quoting from Cafeteria Workers v McElroy, 367 US 886, 895). Due process is a flexible concept which tailors procedural protections to particular facts. "[N]ot all situations calling for procedural safeguards call for the same kind of procedure” (Morrissey v Brewer, 408 US 471, 481).

Several factors must be considered in determining the level of procedural protection required.

"[[Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail” (Eldridge, 424 US, at 335).

"Due process does not, of course, require that the defendant in every civil case actually have a hearing on the merits” (Boddie v Connecticut, 401 US 371, 378). (See, Cohen v Beneficial Loan Corp., 337 US 541, 552 ["(I)t is within the power of a state to close its courts to (shareholder derivative actions) if the condition of reasonable security is not met”]; Ownbey v Morgan, 256 US 94 [due process is not violated by requiring nonresident defendants, sued by foreign attachment, to post security as a condition of appearing and defending an action].)

Insurance Law § 1213 (c) provides, in relevant part,

"(1) Before any unauthorized foreign or alien insurer files any pleading in any proceeding against it, it shall either:
"(A) deposit with the clerk of the court in which the proceeding is pending, cash or securities or file with such clerk a bond with good and sufficient sureties, to be approved by the court, in an amount to be fixed by the court sufficient to secure payment of any final judgment which may be rendered in the proceeding, but the court may in its discretion make an order dispensing with such deposit or bond if the superintendent certifies to it that such insurer maintains within this state funds or securities in trust or otherwise sufficient and available to satisfy any final judgment which may be entered in the proceeding, or
"(B) procure a license to do an insurance business in this state.”

The purpose of the preanswer security requirement is evident from the statute itself. Alien insurers must maintain sufficient funds in the State to satisfy any potential judgment arising from the policies of insurance (including reinsurance treaties) they issue. Thus, preanswer security may not be required if the Superintendent of Insurance certifies that the alien insurer maintains funds in New York sufficient to satisfy a potential judgment and no security is required if the alien insurer is licensed to do business in New York State. Since insurers, licensed and unlicensed alike, capitalize on the legitimate expectations of the public that funds to satisfy judgments on insurance policies are readily available within the State, the Legislature enacted section 1213 (c) to ensure that those expectations would be met.

"In view of the regulation of financial affairs of insurers, the act of a foreign or alien insurer in issuing and delivering policies, soliciting applications for insurance, collecting premiums on (and thus keeping in force) existing insurance, or transacting business in such a way that it appears to the public view as a lawful and authorized insurer, is, in a practical sense a holding out or representation [sic] to the insured that it conducts its affairs in such a way that funds will be accessible for satisfaction of any judgment based on a claim connected with the contract. The attitude of the public toward insurance has been conditioned by the common acceptance of those standards by insurers who submit to licensing requirements in the several states. In a sense, a foreign or alien insurer who carries on its business in such a way as to evade governmental supervision and the requirements for maintaining funds, while profiting from a common public reliance on the effectiveness of such supervision and requirements, may be said to be estopped to complaim [sic] if they are forced upon it” (Mem of NY Law Rev Commn, at 25-26, Bill Jacket, L 1949, ch 826).

The regulation of the insurance industry is closely related to the public interest and a legitimate exercise of a State’s police powers (Health Ins. Assn. v Harnett, 44 NY2d 302, 308-309). Thus, the State may require that an insurer maintain adequate funds to satisfy a judgment against the policies it has issued in New York State. Appellant concedes that the purpose of the preanswer security requirement in Insurance Law § 1213 (c) is to create a fund to pay judgments, if obtained, but claims that its inability to post the security set by the trial court unconstitutionally deprived it of procedural due process.

The Insurance Law clearly provides notice that preanswer security will be required if an alien insurer chooses to conduct business in New York State without a license. Indeed, section 1101 of the Insurance Law, which defines alien reinsurers as a group which need not obtain a license to conduct the business of insurance in New York State, specifically provides, "but section one thousand two hundred thirteen of this chapter shall nevertheless be applicable to such insurers” (Insurance Law § 1101 [b] [2]).

Under these circumstances, appellant’s claim of poverty is disingenuous, as is appellant’s comparison of preanswer security to court fees which may prove prohibitive for indigent litigants. While the amount of court fees cannot be manipulated by litigants, the amount of preanswer security is tied directly to the volume of business conducted by the alien unlicensed insurer. Since appellant received premiums from a New York insurer in exchange for providing coverage under various reinsurance treaties, appellant cannot now repudiate its obligation to post security for the risks that it has been paid to underwrite.

Appellant’s claim that it has retroceded a portion of Nassau’s premiums to a group of retrocessionaires and is financially unable to post security for losses under its reinsurance treaties merely indicates the true nature of the "property” interest appellant claims is at stake in this appeal. Appellant’s interest can be identified as the ability of an alien insurer (here, a Bermuda corporation) to contest its liability on the insurance policies issued in New York State without ensuring that funds for the risks it has agreed to cover are available in New York State. Thus, appellant would encourage alien insurers, with little or no assets in New York, to conduct a large volume of insurance business in this State at the expense of licensed insurers who must limit their risk to a percentage of their surplus, and maintain certain reserves and deposits (see, e.g., Insurance Law §§ 1115 [limitation of risk], 1303 [maintenance of reserves], 1314-1320 [deposit of securities]). Taken to its logical conclusion, appellant’s position would eviscerate the Legislature’s policy, as embodied in the Insurance Law, of ensuring the availability of funds within the State to pay losses on insurance policies issued here. Such a result is not required by notions of procedural due process, especially since the ability to conduct insurance business free from legitimate government regulation is not a constitutionally protected property or liberty interest.

We conclude that the State’s interest in ensuring the availability of funds from which a judgment against a foreign or alien unlicensed insurer may be promptly paid, instead of requiring claimants to resort to far-flung forums for satisfaction of their judgments, justifies striking the answer of a foreign or alien insurer if that insurer fails to provide adequate preanswer security. Appellant contends that the risk of an erroneous judgment is high when a defendant is defaulted. Nonetheless, the importance of the State interest here outweighs appellant’s interest in litigating the merits of the Liquidator’s claims without posting preanswer security sufficient to pay any judgment (see, Trihedron Intl. Assur. v Superior Ct., 218 Cal App 3d 934, 267 Cal Rptr 418 [holding that requiring unauthorized foreign or alien insurers to post preanswer security does not violate due process]; American Centennial Ins. Co. v Seguros La Republica, 1992 WL 147626 [holding that an order requiring defendant to post preanswer security pursuant to Insurance Law § 1213 did not violate due process]; cf., Ace Grain Co. v American Eagle Fire Ins. Co., 95 F Supp 784 [holding that the predecessor to Insurance Law § 1213 (c) does not violate equal protection because requiring unauthorized foreign insurers to post preanswer security is a burden already imposed on authorized foreign insurers]).

Appellant’s attempt to equate section 1213 (c) with the prejudgment replevin statutes held violative of procedural due process in Fuentes v Shevin (407 US 67) is unpersuasive. The statutes at issue in Fuentes permitted agents of the State to seize property in the possession of another (such as a stove, a stereo, furniture, and toys) before a determination on the lawfulness of the possession, and without any notice or opportunity for a hearing at which the party in possession could contest the seizure before it occurred. Unlike the statutes in Fuentes, section 1213 (c) does not eífect a seizure of property. The foreign or alien insurer is merely required to post security as a precondition of filing an answer in litigation over policies which the insurer has issued. Moreover, instead of being available at a plaintiff’s option, without any notice to the defendant, Insurance Law § 1213 (c) mandates court supervision before an insurer may be required to post preanswer security, and the obligation to post this security is a regulatory requirement imposed on all unlicensed foreign and alien insurers. Thus, all of the insurers subject to section 1213 (c) are provided with notice and an opportunity to be heard before being subjected to the preanswer security requirement.

Appellant has received all of the due process protections required by the circumstances. As required by statute, the court heard argument on the appropriate amount of preanswer security to be posted by appellant. Within the context of these proceedings, appellant not only vigorously contested the applicability of section 1213 (c) and the amount of security sought by the Liquidator, but was also provided with the opportunity to obtain a license to do business in New York and 45 days to raise the funds to post security. Although appellant contends that the merits of the Liquidator’s claims were never considered, the trial court reviewed evidence submitted by the Liquidator that appellant entered into three reinsurance treaties with Nassau, and on the magnitude of the losses covered by those treaties, before setting the amount of preanswer security at approximately $10 million. Thus, some consideration was given to the sufficiency of the Liquidator’s claims.

Appellant’s reliance on Bell v Burson (402 US 535) is inapposite to the circumstances here. In Bell, an uninsured motorist involved in an automobile accident faced suspension of his driver’s license unless he posted security sufficient to cover the amount of damages claimed. The United States Supreme Court held that the uninsured motorist was entitled to a forum for determining whether there was a "reasonable possibility of a judgment being rendered against him as a result of the accident” (402 US, at 542).

The State’s interest in Bell was far more attenuated than the State interest here. The basis for the uninsured motorist’s liability, the ability to drive, is not closely connected with that motorist’s ability to pay damages, the reason for the security requirement. Bad driving is not a function of a person’s ability to pay damages. However, an insurer’s ability to pay for the losses incurred under its policies, its liability, is directly linked with the insurer’s ability to post security for the risks it has insured. Finally, unlike the uninsured motorist in Bell, who could not foresee the extent of his liability in the event of an accident, appellant was fully aware that its exposure on the reinsurance treaties with Nassau could exceed $10 million. Appellant was not deprived of procedural due process by the application of Insurance Law § 1213 (c) to this case.

Damages

When an answer is stricken and a default entered, the defendant "admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages [citation omitted]” (Rokina Opt. Co. v Camera King, 63 NY2d 728, 730). Consequently, unless the damages are for a sum certain or a sum which can be made certain by computation, the defendant is entitled to a proceeding to establish plaintiff’s real damages (id.).

The Liquidator presented evidence at the inquest that all of the claims designated with a P prefix were covered under Agreement III. Since appellant’s liability for claims under Agreement III was conceded, appellant’s attempt to introduce evidence that certain P-claims were also covered by other agreements was properly excluded as irrelevant.

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order affirmed, with costs.

      . A reinsurer is in the business of indemnifying a primary insurer for losses paid to the primary insurer’s policyholders (see, Matter of Midland Ins. Co., 79 NY2d 253, 258).

      . As a reinsurer, appellant was not required to obtain a license in order to conduct insurance business in New York and appellant did not obtain such a license (see, Insurance Law § 1101 [b] [2] [G]).

      . The Liquidator also named the DiLoretos as defendants. The DiLoretos commenced a third-patty action against John Tafuro, a former treasurer and assistant treasurer at Nassau. The only defendant involved in this appeal is appellant reinsurer, the Ardra Insurance Company, Limited.

      . Appellant’s counsel argued at the inquest, “I’m trying to show that some other groups of P claims for other years also were covered by treaties other than the two that are in this case.”

      . Consequently, Boddie v Connecticut (401 US 371, supra), which involved a plaintiff unable to pay court fees for the commencement of a divorce action, is inapposite to the circumstances here.