author: Levine, J. Titone, J.

text:
    [639 NE2d 13, 615 NYS2d 656]
    The People of the State of New York, Respondent, v Mark Macana, Appellant.
    Argued June 7, 1994;
    decided July 5, 1994

      POINTS OF COUNSEL

      Miriam J. Hibel, New York City, and Philip L. Weinstein for appellant.
    I. The trial court erred by: (a) giving a missing witness charge against appellant for not calling a witness who could support the defense only by incriminating himself; and (b) denying a missing witness charge against the People for not calling the officer who found the gun appellant was convicted of possessing. (People v Gonzalez, 68 NY2d 424; People v Davis, 43 NY2d 17, 435 US 998; People v De Jesus, 42 NY2d 519; People v Slover, 232 NY 264; People v Rodriguez, 38 NY2d 95: Bowles v United States, 439 F2d 536, 401 US 995; Pennewell v United States, 353 F2d 870; United States v Pitts, 918 F2d 197; People v Simmons, 180 AD2d 402; People v Jimenez, 176 AD2d 241.) II. Where appellant claimed to have disarmed his blind, suicidal father after the latter fired his gun at home, the court erred in giving the jury, as the only example of a "proper” defense of temporary, innocent gun possession, a hypothetical of defendant disarming someone who intended to use the gun to harm "others”, which example counsel protested as "misleading” and "too narrow”. (People v Williams, 50 NY2d 1043; People v Persce, 204 NY 397; People v Montgomery, 106 AD2d 410; People v Jones, 104 AD2d 826; People v Figueroa, 80 AD2d 520; People v Tabarez, 69 NY2d 663; People v Ellis, 171 AD2d 619; People v Thomas, 172 AD2d 572; People v Whitehead, 123 AD2d 895; People v Hayes, 55 AD2d 812.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Jonathan Leinheardt and Steven J. Chananie of counsel), for respondent.
    I. The trial court properly granted the prosecutor’s request for a missing witness charge as to defendant’s father, and this ruling did not deny defendant his right to a fair trial. (People v Rodriguez, 38 NY2d 95; People v Wilson, 64 NY2d 634; People v Gonzalez, 68 NY2d 424; People v Singleton, 42 NY2d 466; People v Brown, 34 NY2d 163; People v Paulin, 70 NY2d 685; United States v MMR Corp., 907 F2d 489; Griffin v California, 380 US 609; People v Thomas, 51 NY2d 466; Marine Midland Bank v Russo Produce Co., 50 NY2d 31.) II. The trial court properly denied defendant’s request for a missing witness charge as to an uncalled police officer. Moreover, any error was harmless based on the overwhelming evidence of defendant’s guilt. (People v Rodriguez, 38 NY2d 95; People v Gonzalez, 68 NY2d 424; People v Erts, 73 NY2d 872; People v Hitching, 78 NY2d 532; People v Buckler, 39 NY2d 895; People v Wright, 41 NY2d 172; People v Crimmins, 36 NY2d 230; People v Phiefer, 43 NY2d 719.) III. Defendant has not preserved for review his claim that the court’s charge on the defense of temporary and lawful possession of a weapon was constitutionally infirm. In any event, the court’s charge, when viewed as a whole, was proper, and the trial court did not deny defendant the right to a fair trial. (People v Marinescu, 175 AD2d 141; People v Mobley, 162 AD2d 305; People v Iannelli, 69 NY2d 684; People v Oliver, 63 NY2d 973; People v Middleton, 54 NY2d 42; People v Almodovar, 62 NY2d 126; People v Banks, 76 NY2d 799; People v Williams, 50 NY2d 1043; People v Hurk, 165 AD2d 687; People v Russell, 266 NY 147.)
   OPINION OF THE COURT

Levine, J.

Defendant appeals from the Appellate Division’s affirmance of his conviction in Supreme Court, Queens County, of criminal possession of a weapon in the third degree. Defendant was arrested on August 2, 1990 when a number of police officers responded to a radio report of shots fired in the vicinity of defendant’s residence in Queens. Three of the responding officers testified at defendant’s trial. According to their testimony, upon arriving at the defendant’s home, the officers observed what appeared to be bullet holes in a window screen and the garage door, and a spent round was recovered next to the house. Defendant then gave the officers consent to enter the house. While the officers were inside, they observed defendant reaching toward a pile of clothes on a table. As one officer stopped defendant’s movement, another officer sifted through the clothes and discovered a .45 caliber pistol. The officer who actually physically recovered the pistol from under the pile of clothes did not testify at trial.

The theory of the defense was that defendant was in temporary and lawful possession of the pistol (see, People v Williams, 50 NY2d 1043). In support, defendant testified as follows. The pistol belonged to his father, who also lived in the same house. His father was totally blind and suffered from serious depression, and had expressed a desire to kill himself the night before defendant’s arrest. The next day, after hearing gunshots in the kitchen and finding his father holding the pistol, defendant took the gun from his father and hid it in a hutch in the living room. Defendant’s brother came to the house and took their father to his home before the police arrived and found the pistol secreted in the hutch. Defendant, however, did not call or subpoena his father as a witness to confirm the foregoing version of his temporary, innocent possession of the gun.

Upon the People’s request, the trial court granted a missing witness charge against defendant based upon his failure to call his father as a witness, notwithstanding defense counsel’s contention that the father, if called, would probably have to assert his Fifth Amendment right against self-incrimination. The court, however, declined defendant’s request for a missing witness charge regarding the officer who actually recovered the pistol. Defendant appealed and the Appellate Division affirmed (193 AD2d 702), concluding that because defendant’s father was not called or subpoenaed by the defense, the missing witness charge was properly granted to the People. A Judge of this Court granted defendant leave to appeal and we now affirm.

Defendant’s primary contention on this appeal is that the trial court erred in granting a missing witness charge as to defendant’s father. Defendant’s essential position is that a missing witness charge should not be given with respect to an uncalled defense witness in any case where the witness’ potential testimony could be self-incriminating, such that the witness might invoke his or her Fifth Amendment privilege.

Although a court may not ordinarily comment on a defendant’s failure to testify or otherwise come forward with evidence at trial, it is by now well settled that once a defendant does so, the customary standards for giving a missing witness charge apply (see, People v Wilson, 64 NY2d 634, 635-636; People v Rodriguez, 38 NY2d 95, 98; see also, Graves v United States, 150 US 118, 121). As set forth in People v Gonzalez (68 NY2d 424), the party seeking the missing witness charge must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and to provide testimony favorable to the opposing party (id., at 427-428; see also, People v Kitching, 78 NY2d 532, 536-537). The burden then shifts to the opposing party, in order to defeat the request, "to account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate. This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not 'available’, or that the witness is not under the party’s 'control’ such that he would not be expected to testify in his or her favor” (People v Gonzalez, supra, at 428; see, People v Kitching, supra, at 537).

In the instant case, the People made an adequate prima facie showing, based upon defendant’s own testimony, that his father was knowledgeable about a material issue in the case, i.e., whether defendant’s possession of the weapon was innocent and lawful. It was also established that this missing witness could be expected to testify favorably to defendant (see, People v Rodriguez, supra, at 98, n 1 ["A spouse or relative is perforce deemed to be under the defendant’s control”]). Accordingly, the burden shifted to defendant to account for the witness’ absence or to otherwise demonstrate that the charge would be inappropriate. The only showing made by defendant to counter the People’s request was defense counsel’s unsubstantiated statement that the father would probably have to invoke his Fifth Amendment privilege against self-incrimination if called to testify.

In People v Rodriguez, we recognized that if the uncalled witness were a codefendant likely to invoke the Fifth Amendment and refuse to testify, a missing witness charge against the defense would be inappropriate (supra, at 100). The same

rule extends to uncalled accomplices, even if uncharged (see, 1 Wharton, Criminal Evidence § 88, at 275 [14th ed 1985]). The reasons underlying this exception are: (1) that the witness’ probable invocation of the privilege casts into doubt one of the requisite preconditions of the missing witness inference, that the uncalled witness would likely testify favorably to the party opposing the charge (see, United States v Pitts, 918 F2d 197, 200 [DC Cir]); (2) that such a witness must be deemed "unavailable” to the opponent of the charge (see, Lawson v United States, 514 A2d 787, 791-792 [DC Ct App]; and (3) the concern that the witness’ invocation of the privilege on the stand might result in undue prejudice to the defendant (see, United States v Pitts, supra, at 200; Christensen v State, 274 Md 133, 140, 333 A2d 45, 49).

The dispositive issue on this point is whether, in order to avoid a missing witness charge, defendant was required to verify that his father’s material testimony would have been self-incriminating and that he would likely have invoked the privilege against self-incrimination and refused to testify. One eminent authority has suggested that such verification should be required in all cases: "the witness should at least have been summoned and asked, for he may waive the privilege” (2 Wigmore, Evidence § 286, at 201 [Chadbourn rev 1979]).

Nonetheless, there are instances where the prosecution’s own evidence establishes the existence of the witness and his or her involvement in the criminal activity for which the defendant is on trial. Because the undisputable inference in such circumstances would clearly be that the material testimony of that witness would likely be incriminating and that the witness would refuse to testify, further verification would be unnecessary. And the cases, generally involving uncalled accomplices, so hold (see, e.g., United States v Pitts, supra; Lawson v United States, supra; Christensen v State, supra; State v Cavness, 46 Haw 470, 381 P2d 685).

Additional safeguards should, however, be required when the defendant is the only source of proof of either the existence of the uncalled witness or that favorable testimony of that witness would be self-incriminating. In such circumstances, the possibility of incurring an unfavorable missing witness charge would be a significant deterrent against a fabricated defense version, shifting criminal responsibility to the uncalled witness. Charges of illegal possession of contraband are particularly amenable to such a defense stratagem. Thus, although Maryland does not require verification in denying a missing witness charge when the uncalled witness is a known, acknowledged accomplice (see, Christensen v State, 274 Md 133, 333 A2d 45, supra), that State’s highest court has required verification in a criminal possession of a stolen vehicle case when the "[uncalled witness’] existence and his involvement in this case were not demonstrated by any evidence other than the testimony of the defendant”, explaining that "[i]t is not uncommon for one found in exclusive possession of recently stolen property to fabricate a story involving another person as the provider of the property — some person often said to be known only by a street name, who supposedly gave, sold, or loaned the property to the defendant under the most innocent of circumstances” (Robinson v State, 315 Md 309, 317, 554 A2d 395, 399).

Likewise here, defendant’s position on appeal would permit him to shift the criminal wrongdoing from himself to his father and absolve him from calling his father as a witness, based solely on his own assurances that the father was present, participated in the criminal activity and would verify defendant’s version except for the risk of self-incriminatian. None of these facts was subject to confirmation by the police because, according to the defendant, his father left the premises between the time the weapon was fired and the police arrived. Under these circumstances, requiring some additional, nonprejudicial substantiation by the defendant represents a fair balancing of the competing legitimate interests of the People (to deter a perjurious defense) and of the defendant (to avoid an unfavorable missing witness charge when a material witness would actually be likely to refuse to testify because of the risk of self-incrimination). As the Maryland Court of Appeals noted, "it should be kept in mind that the witness may be questioned out of the presence of the jury concerning the privilege, and if a privilege is claimed the trial judge may use that information to rule out a missing witness instruction” (Robinson v State, 315 Md, at 316, 554 A2d, at 398, supra). We suggested as much in People v Rodriguez when we stated, in upholding a missing witness instruction in that case, "[n]or was there here an assertion by or on behalf of the witness that he would invoke the Fifth Amendment and refuse to answer questions” (38 NY2d 95, 100, supra [emphasis supplied]). Thus, we cannot conclude that it was an abuse of discretion for the trial court to grant the missing witness charge against the defendant in the absence of any verificatian that the witness’ testimony would be self-incriminating and he would likely refuse to testify on self-incrimination grounds.

We likewise conclude that the trial court acted within the bounds of its discretion in rejecting defendant’s request for a missing witness charge as to the officer who actually retrieved the gun from underneath the pile of clothing. Three officers testified regarding defendant’s movements toward the location where the gun was found, and two testified specifically as to the retrieval of the gun from a pile of clothing on a table by their fellow officer. There is nothing in the record to indicate that the missing officer would have testified differently or in accordance with defendant’s claim that the gun was retrieved from the living room hutch. "It is not incumbent upon the prosecution 'to call at trial every witness to a crime or to make a complete and detailed accounting to the defense of all law enforcement investigatory work’ ” (People v Buckler, 39 NY2d 895, 897 [quoting People v Stridiron, 33 NY2d 287, 292]), and there is ample support in the record that the missing officer’s testimony would have been cumulative and therefore not a proper subject of a missing witness charge.

Finally, upon our review of the record, we conclude that the trial court’s charge on temporary and innocent possession, when read as a whole, was sufficient to impart to the jury the correct rule to apply in reaching its verdict (see, People v Canty, 60 NY2d 830).

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

Titone, J.

(dissenting). The simple premise underlying an adverse inference charge for a missing witness is that a person in a party’s control, and capable of offering favorable, material testimony, would "naturally” be expected to testify for that party given the party’s litigation theory (People v Gonzalez, 68 NY2d 424, 427). Thus, the party’s failure to call that presumably "friendly” witness permits the logical inference that the witness was not summoned because the anticipated testimony would have been unfavorable. Where, under the party’s theory, that person could give material testimony only by incriminating himself or herself, it is no longer a valid assumption that he or she would testify in the party’s favor and simultaneously risk his or her own prosecution. Accordingly, I cannot join the majority’s conclusion that a missing witness charge was warranted here because defendant failed to verify that his father would have invoked the privilege against self-incrimination — a point which was never disputed by the People. Rather, I would hold that because defendant’s father would undeniably have had to place himself in criminal jeopardy to materially support his son’s defense, the People failed to meet their initial burden of proving that the missing witness would "naturally” be expected to testify favorably to defendant, and an adverse inference charge was improper on the record before us.

As the majority recognizes, the People bore the burden in the first instance, as the proponents of the missing witness charge, to establish both that defendant’s father was "knowledgeable about a material issue” in the case and "would naturally be expected to provide * * * testimony favorable to the party who has not called him” (Gonzalez, 68 NY2d, at 427; see, majority opn, at 177). The latter element of that test, referred to as "control,” will be satisfied when the prosecution establishes that the absent witness’ testimony would not be hostile to the defense theory of the case. Only after that burden was satisfied was defendant required to come forward with evidence within his exclusive knowledge to otherwise "account for the witness’ absence” (Gonzalez, supra, at 428) and defeat the prosecution’s claim that his father would have been a witness with " 'good will’ ” towards the defense (id., at 430, quoting Richardson, Evidence § 92, at 66 [Prince 10th ed]). In this case, the burden never shifted to defendant, and it is on this point that I depart from the majority’s holding.

The majority erroneously concludes that the People met their burden of proving that defendant’s father was under defendant’s "control” merely by demonstrating that a familial relationship existed between defendant and the missing witness, and that the burden then shifted to defendant to verify that his father would have invoked the privilege against self-incrimination (see, majority opn, at 177). This overly simplistic view ignores the reality that other circumstances — such as the obvious risk of criminal prosecution — may operate to negate the inference derived from the natural tendency of a family member to testify with a bias in favor of a relative and will preclude the party seeking the charge from satisfying its initial burden. Indeed, while a familial relationship may generally be indicative of good will between a party and a witness, it is by no means dispositive of the determination that the witness is within that party’s control, and the majority misreads this Court’s precedent in concluding that the prosecution met its burden here simply by relying on that fact (see, People v Gonzalez, 68 NY2d 424, supra; People v Rodriguez, 38 NY2d 95; People v De Jesus, 42 NY2d 519, 525).

The majority properly acknowledges that no further verification of a missing witness’ existence or plans to invoke the privilege against self-incrimination is needed where "the undisputable inference * * * would clearly be that the material testimony of that witness would likely be incriminating and that the witness would refuse to testify” (majority opn, at 178). In other words, where "the most likely result of calling * * * a witness would have been his refusal to testify on self-incrimination grounds”, the inference that the witness would have given testimony favorable to the party who otherwise would have naturally called him or her is negated and the proponent’s burden is not satisfied (People v Bessard, 148 AD2d 49, 54 [3d Dept 1989, Levine, J.]). Indeed, "the jury is not entitled to draw any inference from a failure to testify that is ascribable to the witness’s reliance on his Fifth Amendment privilege” (Bowles v United States, 439 F2d 536, 542 [DC Cir 1970]; see also, Pennewell v United States, 353 F2d 870, 871 [DC Cir 1965]). There is no sound reason for the majority’s failure to apply that analysis to preclude adverse comment on the absence of defendant’s father here.

Part of the internal logic of defense theory — i.e., that defendant’s father was the true possessor of the gun — is inherently inconsistent with any expectation that the absent father would substantiate that defense. Thus, it would not be natural or logical for the defense to call this witness, whose interests are potentially adverse to the defense theory, and no adverse comment is justified on this record (see, United States v Pitts, 918 F2d 197, 200 [DC Cir 1990]). Additionally, the majority’s fears that a defendant could mount a perjurious defense by shifting the blame to a fictitious third party are not implicated here (see, majority opn, at 178). Significantly, the People do not dispute that defendant’s father exists, or that he owned the house where the gun was found. Indeed, the People never disputed that defendant’s father was likely to invoke the 5th Amendment privilege, that defense counsel had knowledge of that fact or that he had met with the missing witness. Rather, the People’s sole contention in support of their request for an adverse inference charge — and the sole basis for the trial court’s grant of that request — was that defendant’s father could testify to other nonincriminatory facts, such as his depression and suicidal thoughts, which would not subject him to criminal prosecution. Tellingly, the framing of the prosecution’s request itself is internally inconsistent with the notion that any doubt existed as to the witness’ existence or intent to invoke the privilege. Defense counsel was never required to substantiate the accepted assertion that defendant’s father would have invoked his privilege, and should not now be penalized for failing to do so.

In any event, testimony by the father as to those collateral facts, although relevant, would not have supported the defense in any material respect. To do so, defendant’s father would have had to testify as to the sole material issue in the case— who possessed the gun. Indeed, even a statement by defendant’s father that he owned or was present in the house when the shots were fired and where the gun was found could have potentially subjected him to criminal liability on a constructive possession theory. Clearly, where, as here, an alternative explanation exists for a witness’ absence which is at least as likely as the prospect that the witness was not called because the testimony would be damaging, the adverse inference loses its probative force and should not be given.

Finally, it cannot be said on this record that the error in adversely commenting on defendant’s father’s absence was harmless where the heart of the defense was that the missing witness was the actual culprit and that defendant had temporarily taken possession of the gun to secure that witness’ safety. Indeed, defendant’s success depended solely on the jury’s assessment of his credibility and its acceptance of defendant’s claim that his father was the true possessor of the gun, and the missing witness charge may well have influenced the jury on this critical determination (see, United States v Pitts, 918 F2d 197, 201, supra). Accordingly, I vote to reverse.

Chief Judge Kaye and Judges Bellacosa, Smith and Ciparick concur with Judge Levine; Judge Titone dissents and votes to reverse in a separate opinion in which Judge Simons concurs.

Order affirmed.


source: Caselaw Access Project

author: Bellacosa, J. Titone, J.

license: Public Domain

text:
    [639 NE2d 19, 615 NYS2d 662]
    The People of the State of New York, Respondent, v Rafael Flores, Appellant.
    Argued June 8, 1994;
    decided July 7, 1994

      POINTS OF COUNSEL

      Howard A. Pincus, New York City, and Ira Mickenberg for appellant.
    I. Mr. Flores was denied the effective assistance of counsel when his attorney’s volunteered comments at sentencing stripped him of a Rosario issue that was per se reversible error. (People v Droz, 39 NY2d 457; People v Bennett, 29 NY2d 462; People v Consolazio, 40 NY2d 446, 433 US 914; People v Ranghelle, 69 NY2d 56; People v Baldi, 54 NY2d 137; Murray v Carrier, 477 US 478; United States v Cronic, 466 US 648; People v Sinatra, 89 AD2d 913; People v Rodriguez, 185 AD2d 198; Orazio v Dugger, 876 F2d 1508.) II. Alternatively, Mr. Flores’ conviction must be reversed on the basis of the Rosario error itself because counsel’s comments, weeks after the verdict, could not prove that the defense would have been identical had the material been timely disclosed. (People v Fields, 146 AD2d 505; People v Jones, 70 NY2d 547; People v Rosario, 9 NY2d 286.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Daniel S. Ratner, Joseph N. Ferdenzi and Billie Manning of counsel), for respondent.
    I. Appellant’s guilt of two counts of sodomy in the first degree was proven beyond a reasonable doubt by overwhelming evidence. II. Appellant failed at trial to preserve or demonstrate his claim of a Rosario violation; he was also afforded effective assistance of counsel. (People v Thomas, 53 NY2d 338; People v Rogelio, 79 NY2d 843; People v Rivera, 78 NY2d 901; People v Davis, 160 AD2d 664, 81 NY2d 281; People v Jackson, 78 NY2d 900; People v Jones, 70 NY2d 547; People v De Jesus, 69 NY2d 855; People v Quinones, 139 AD2d 404, 73 NY2d 988; People v Tutt, 38 NY2d 1011.)
   OPINION OF THE COURT

Bellacosa, J.

Defendant was convicted after a jury trial of four counts of sodomy in the first degree (Penal Law § 130.50 [1], [2]), charges arising out of his deviate sexual intercourse with a six-year-old boy who lived in defendant’s apartment building. The judgment was affirmed by the Appellate Division, and a Judge of this Court granted leave to appeal. The sole dispositive issue before this Court is whether defendant was deprived of effective assistance of counsel at the trial level.

At the close of the People’s evidence, defense counsel, without requesting any relief or a mistrial, notified the court that his request for all possible Rosario material had not been satisfied. He had decided to proceed during the trial, without objection as to any Rosario concerns, to full cross-examination of the People’s witnesses (see, People v Rosario, 9 NY2d 286, rearg denied 9 NY2d 908, cert denied 368 US 866).

After the jury returned its guilty verdict but before sentencing, a police officer’s memo book possibly containing statements made by the complainant and his mother, both of whom testified at trial, was delivered to defense counsel. Defendant’s lawyer reviewed the single page to see if it was potentially relevant and declared that it would have been of no evidentiary use or value. Specifically, defense counsel stated on the record that "there is absolutely nothing in the memo book that would have made any difference in terms of what I did or did not do, ask or did not ask and that’s about it.” There was no acknowledgement that it even technically qualified as Rosario material.

Defendant now argues that he was deprived of effective assistance of counsel (see, US Const 6th, 14th Amends; NY Const, art I, § 6), concentrating essentially on a claim that his trial attorney’s evaluation and representation was per se "meaningless” because counsel gave away an allegedly surefire new trial, Rosario reversal.

The intellectually disciplined dispositional path of this case must not veer from this Court’s long-standing, well-settled ineffective assistance of counsel analysis and authorities. In People v Baldi (54 NY2d 137), this Court held that when reviewing a claim of ineffective assistance of counsel, care should be taken "to avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis” (id., at 146 [emphasis added]). The constitutional requirement of effective assistance of counsel will be satisfied when "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (id., at 147 [emphasis added]; see also, People v Satterfield, 66 NY2d 796, 798-800). This protection does not guarantee a perfect trial, but assures the defendant a fair trial (see, People v Claudio, 83 NY2d 76, 80, citing United States v Cronic, 466 US 648, 658). To prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after the trial, does not suffice (see, People v Benn, 68 NY2d 941, 942).

This defendant received a fair trial and was not denied his constitutional right to effective assistance of counsel. The totality of representation examined as of the time of representation, not retrospectively second-guessed four years later, supports this elementary conclusion. Moreover, the attorney’s decision not to press for a new trial at the postverdict stage of the criminal proceeding — assuming without having to decide in this case that a new trial was then procedurally and merit-wise available — based on a possible Rosario appellate point of argument, is another aspect of the attorney’s role at the trial level which fits distinctively within the very heart of the Rosario rule. Judge Fuld articulated that rule as a "right sense of justice” requiring defense counsels’ personal examination to "determine for themselves” whether a document may be helpful for cross-examination purposes (People v Rosario, 9 NY2d 286, 289, supra [emphasis added]; see, People v Ranghelle, 69 NY2d 56, 62). The Court emphasized this shift in focus and responsibility from the courts to defense attorneys preeminently because the nuances, features and scope of cross-examination "are certainly not as apparent to the impartial presiding judge as to single-minded counsel for the accused” (People v Rosario, supra, at 290). Defense counsel in this case got eventually to do precisely what Rosario directed. Neither the preverdict conduct of defense counsel nor his on-the-record evaluation and explanation prior to sentencing rise to the level of "egregious and prejudicial” conduct, especially since there can be no certainty at this juncture that a new trial was an available remedy at those stages of the trial proceedings, measured by the totality-of-meaningful-representation standard necessary to prevail on an ineffective assistance of counsel claim.

For all this record reveals about defense counsel’s ultimate evaluation of the disclosed item, on the scene and in the circumstances at that postverdict stage of the criminal proceeding, defense counsel could have reasonably considered that his client’s interest would best be served by no further delay in the resolution of the case against the client. Any number of other professional strategic reasons or personal considerations affecting the defendant’s fair trial interests could also have informed the attorney’s professional evaluation and choice on how and why to proceed in the way chosen. The record does emphatically inform us, even as an appellate court reviewing the matter, of the defense lawyer’s assessment of the quality and nature of the ultimately disclosed item— "absolutely” useless. A plausible strategy might even have included advocacy for amelioration of sentence or some other nuanced advantage in the adversarial exchanges and context, all matters and features not knowable by trial or appellate Judges removed from the full range of choices and context exercised singularly by the trial lawyer for the defendant. In sum, Rosario was designed to insure that defense counsel, not Judges, should do the strategic viewing, weighing and exercising of the defendant’s fair trial advocacy interests in this regard (see, People v Rosario, 9 NY2d 286, 290, supra).

Even less persuasively, the rationale of the dissent proposes to establish a new New York analytic framework that an "unexplained error” by counsel is sufficient, by itself, to deprive defendant of effective assistance (dissenting opn, at 192). This Court has steadfastly and wisely adhered to an analytical approach and rule requiring all the evidence to be weighed in context and as of the time of complete representation at the trial level for resolving ineffective assistance of counsel claims (see, People v Baldi, 54 NY2d 137, 147, supra; see also, People v Rivera, 71 NY2d 705, 708, citing People v Droz, 39 NY2d 457). A substantial, single "blunder” could, of course, qualify, but that is not this case and that ought not be the newest per se orthodoxy. The dissent’s reliance on Murray v Carrier {All US 478) does not change our analysis. In Murray (supra, at 496), the Supreme Court stated that an isolated error of counsel can constitute ineffective assistance of counsel but only "if that error is sufficiently egregious and prejudicial,” i.e., that error was so serious that defendant did not receive a "fair trial” (see, People v Claudio, 83 NY2d 76, 80, supra, citing United States v Cronic, 466 US 648, 655, supra).

In that context, this record further demonstrates that defense counsel represented his client diligently and vigorously during the course of the entire trial. Counsel exhaustively cross-examined the People’s witnesses and delivered opening and closing statements that were consistent with defendant’s defense (see, e.g., People v Hood, 62 NY2d 863, 865). Further, counsel was successful in having several counts of an extremely serious multiple count indictment dismissed. Indeed, the record shows that counsel exercised a single-minded devotion to his client’s best interests and representation. Thus, when viewed in its totality as of the time of trial, the attorney’s professional services at trial did not deprive this defendant of "meaningful representation” (People v Baldi, 54 NY2d 137, 146-147, supra). Facile hindsight or mere difference of view or approach with an exercise of professional judgment by defense counsel do not translate automatically into ineffective assistance of counsel qualifying as the denial of a fair trial. In the end, defendant has simply failed to satisfy the well-settled, high burden of showing that he was deprived of a fair trial and meaningful representation sufficient to warrant a reversal. We agree with the Appellate Division’s unanimous observation that:

"When counsel candidly denies having any use for the material when it is finally disclosed, it cannot be said that the defendant has any substantive right to be vindicated, and there is no basis in law or logic to order a new trial when there is no new issue to be tried. There is no basis in the record to controvert counsel’s conclusions, and neither can counsel’s representation be deemed incompetent merely because he did not pursue a concededly frivolous substantive claim as a basis for a new trial” (194 AD2d 439).

Therefore, we, too, conclude that no justification has been advanced justifying a new trial, to pursue anew a line of inquiry defense counsel evaluated and declared "absolutely” meaningless and valueless (see, People v Claudio, 83 NY2d 76, 80, supra).

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

Titone, J.

(dissenting). I cast my vote to reverse and order a new trial, thereby affording defendant the benefit he would have had if his attorney had not inexplicably waived the per se Rosario remedy to which he was clearly entitled under this Court’s precedents (see, e.g., People v Jones, 70 NY2d 547).

The majority’s decision to reject defendant’s present argument that he was denied the effective assistance of counsel rests on its assertion that counsel might have had some strategic reason for failing to seek the new trial to which his client was unquestionably entitled. However, given the advancement of the client’s penal interests as the appropriate yardstick, it is difficult to discern a valid "strategic” advantage that this defendant, who had already been convicted of four counts of first degree sodomy, would have enjoyed by forgoing the new trial that would surely have followed from a properly made CPL 330.30 motion to set aside the verdict. Moreover, even if a theoretical "strategic” benefit for waiving defendant’s rights at the postverdict, prejudgment stage could be articulated, there could be no conceivable "strategic” reason for a defense attorney to volunteer for the record his own opinion that the prosecution’s Rosario violation had not led to any palpable prejudice. In opting to speak out rather than simply refraining from moving to set aside the verdict under CPL 330.30, defendant’s trial counsel affirmatively foreclosed the possibility of obtaining relief at some future point (see, People v Jackson, 78 NY2d 638, supra). Whatever justification may have existed in counsel’s mind for waiving an indisputably meritorious Rosario claim at that point in the proceedings, no similar justification could exist for counsel’s entirely separate choice to make observations that could only redound to his client’s detriment (see, People v Bell, 48 NY2d 933; cf., People v Baldi, 54 NY2d 137).

The majority speculates about the existence of "[a]ny number of * * * professional strategic reasons or personal considerations affecting defendant’s fair trial interests” (majority opn, at 188). The Court refers to "advocacy for amelioration of sentence” as a "plausible strategy,” (majority opn, at 188) but does not explain how forgoing a legitimate motion to set aside the verdict for Rosario error could possibly advance that goal. The only other specific "strategic” consideration that is offered is that counsel "could have reasonably considered that his client’s interest would best be served by no further delay in the resolution of the case” (majority opn, at 188). In other words, the Court is now prepared to accept as "reasonable” representation, a decision by defense counsel to handle the case in such a way as to assure his or her client swift and certain punishment. Manifestly, if that rationale can be invoked to explain an otherwise inexplicable act by defense counsel, there would be little professional misconduct left that could ever be considered "ineffective assistance.”

Although we may have gone a long way in the direction of tolerating apparent professional blunders in the name of "trial strategy,” even that doctrine must have some limits. And, those limits, to the extent they exist, must be measured by reference to our basic assumptions about an attorney’s role in an adversary system. These assumptions include the fundamental supposition that a criminal defense attorney will do whatever is necessary and appropriate — within the law’s confines — to help the client to avoid an unfavorable adjudication or to escape punishment (see, Code of Professional Responsibility, Canon 7, DR 7-101; EC 7-1). While there may be anomalous individual situations in which a client prefers prompt punishment for some personal reason, those situations are rare and atypical. They certainly cannot be used as a fair basis for presuming that a particular attorney’s wholly self-defeating acts were the product of a deliberate strategic choice.

If the rule requiring the "effective assistance” of counsel at trial is to have any meaning at all, it must be premised on the notion that, in most cases, the attorney’s aim is to defeat the People’s charges or at least to minimize the client’s exposure to incarceration. Any action — or inaction — that could conceivably advance those goals can arguably be deemed "trial strategy.” Delivering up one’s client for incarceration sooner rather than later — with no concrete advantage discernible— obviously does not fall within that category.

Significantly, even the Appellate Division did not attempt to invoke the "trial strategy” analysis the majority has used in order to rationalize its decision to affirm. Instead, the Appellate Division relied on its own sense that defendant should not be afforded a new trial when, according to his counsel’s "candid” statement, defendant had no "substantive right to be vindicated” (194 AD2d 439). Manifestly, that rationale is equally infirm, since it overlooks that, in view of the prosecution’s belated Rosario disclosure, defendant had a substantive right to a new trial without regard to any hindsight estimate of what value the undisclosed material might have had (see, People v Jones, supra).

In truth, there is no legally or logically cognizable basis in this case for concluding that defendant received the effective assistance of counsel to which he was entitled. While defense counsel may have otherwise conducted an unobjectionable defense, counsel’s unexplained error in waiving defendant’s winning Rosario claim and thereby depriving him of a second chance at acquittal was so egregious and unquestionably prejudicial as to constitute a denial of effective assistance in itself. Although an ineffective-assistance-of-counsel claim must be "weighed in context and as of the time of complete representation at the trial level” as the majority notes (majority opn, at 188), that does not — and, in fact, cannot — mean that a single error by counsel can never alone form the basis of a valid ineffective-assistance claim (see, Murray v Carrier, 477 US 478, 496 [even an isolated error can constitute ineffective assistance]).

Here, defendant had nothing to lose and everything to gain by objecting to the prosecution’s Rosario violation and demanding a new trial without regard to the actual prejudice that that violation had caused. Counsel’s failure to obtain that benefit for his client cannot be reconciled with his duty to provide informed and zealous representation. Accordingly, I dissent from the majority’s decision to affirm the judgment of conviction.

Chief Judge Kaye and Judges Simons, Smith and Levine concur with Judge Bellacosa; Judge Titone dissents and votes to reverse in a separate opinion in which Judge Ciparick concurs.

Order affirmed.

      . The majority hints at some change in the law, noting that there is some question in its mind as to whether a new trial "was * * * procedurally and merit-wise available” (majority opn, at 187). Since there is no doubt that the failure to disclose Rosario material is per se reversible error when the disclosure occurs after the close of evidence (see, People v Jackson, 78 NY2d 638, 649; People v Jones, 70 NY2d 547; cf., People v Ranghelle, 69 NY2d 56), I can only assume that the majority’s reservation concerns the question whether a motion to set aside a verdict under CPL 330.30 (1) is a proper vehicle for asserting a Rosario claim discovered after announcement of verdict. I would note, however, that any conclusion by this Court that CPL 330.30 (1) is not available in these circumstances would represent a dramatic change in the law (see, e.g., People v Kanefsky, 50 NY2d 162; People v Wright, 197 AD2d 398; see also, People v Jackson, supra, at 658 [Titane, J., dissenting]). Thus, the possibility that some of the members of this Court might, in the future, arrive at such a conclusion has no bearing on whether defense counsel here acted competently "as of the time of * * * representation at the trial level” (majority opn, at 188).

      . The majority notes that defense counsel sought no particular relief during trial based upon the undisclosed Rosario material. Inasmuch as this appeal concerns the effectiveness of trial counsel’s performance at trial, it is difficult to discern what legal significance can logically be ascribed to counsel's purported silence. In any event, for the sake of clarity, it must be noted that there were extensive discussions about the undisclosed Rosario material during trial. Further, the trial court itself made it clear that, in its view, a continued failure by the prosecutor to comply would lead to a reversal of any jury determination. The trial court’s comments on the subject, including its statement that it would "have [defense counsel] preserve his exceptions for the record with respect to th[e] memo book,” made further action by defense counsel unnecessary.


author: Titone, J.

text:
    [639 NE2d 740, 616 NYS2d 1]
    New York City Health and Hospitals Corporation, Respondent, v Lorna McBarnette, as Executive Deputy Commissioner of Health of the State of New York, et al., Appellants.
    Argued May 4, 1994;
    decided June 30, 1994

      POINTS OF COUNSEL

      G. Oliver Koppell, Attorney-General, New York City (Barbara K. Hathaway and Jerry Boone of counsel), for appellants. I.
    Plaintiff’s declaratory judgment action challenging an aspect of its Medicaid reimbursement rate, brought more than IVz years after the rate was established, is untimely, since the claim could have been resolved through a CPLR article 78 proceeding. (Solnick v Whalen, 49 NY2d 224; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Press v County of Monroe, 50 NY2d 695; Matter of Medical Arts Sanitarium v New York State Dept. of Health, 184 AD2d 399; Matter of Fahey v Axelrod, 141 AD2d 962; Matter of Klein v Axelrod, 81 AD2d 935, 54 NY2d 818; Matter of Hospital Assn. v Axelrod, 165 AD2d 152; Holliswood Care Ctr. v Whalen, 58 NY2d 1001; Matter of Jewish Mem. Hosp. v Whalen, 47 NY2d 331; Matter of Owners Comm. on Elec. Rates v Public Serv. Commn., 150 AD2d 45, 76 NY2d 779.) II. The Commissioner of Health may, in response to the judicial invalidation of a Medicaid rate-setting methodology, apply a corrected methodology retrospectively, where doing so will not reduce the rates judicially invalidated. (New York State Assn. of Counties v Axelrod, 78 NY2d 158; Jordan Health Corp. v Axelrod, 67 NY2d 935; Hurbut v Whalen, 58 AD2d 311, 43 NY2d 643; Matter of Wellsville Manor Nursing Home v Axelrod, 142 AD2d 225, 74 NY2d 602; Matter of Brookdale Hosp. Med. Ctr. v Axelrod, 120 AD2d 144; Burke’s Auto Body v Ameruso, 113 AD2d 198; Matter of Berger v Walsh, 291 NY 220; Matter of Ahsaf v Nyquist, 37 NY2d 182; Rob Tess Rest. Corp. v New York State Liq. Auth., 49 NY2d 874.)

      Rosenman & Colin, New York City (Peter F. Nadel, David A. Florman and Allison Sher Arkin of counsel), for respondent.
    I. There was no error in holding that defendants’ concededly unlawful, State-wide alternate level of care straddle rule was not insulated by a four-month Statute of Limitations. (Solnick v Whalen, 49 NY2d 224; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Matter of Gold v Lomenzo, 29 NY2d 468; Matter of Kovarsky v Housing & Dev. Admin., 31 NY2d 184; Matter of DuBois v Town Bd., 35 NY2d

      617; Matter of Zuckerman v Board of Educ., 44 NY2d 336; Amerada Hess Corp. v Acampora, 109 AD2d 719; Press v County of Monroe, 50 NY2d 695; Matter of Birchwood Nursing Home v Whalen, 70 AD2d 1020.) II. New York City Health and Hospitals Corporation’s due process rights were violated, and its resulting claims were timely. (Matter of White Plains Nursing Home v Whalen, 53 AD2d 926, 42 NY2d 838, 434 US 1066; Clove Lakes Nursing Home v Whalen, 45 NY2d 873; Oberlander v Perales, 740 F2d 116; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193.) III. New York City Health and Hospitals Corporation is entitled to the same relief as defendants granted to other nonplaintiff hospitals post-Matter of Hospital Assn. v Axelrod (165 AD2d 152 [1991]). (Suffolk Hous. Servs. v Town of Brookhaven, 69 AD2d 242, 48 NY2d 652; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 459 US 837; Kofer v Village of Pelham, 710 F Supp 483, 888 F2d 126; Gonzales v Home Ins. Co., 909 F2d 716; Chevron Oil Co. v Huson, 404 US 97; Sutphin Pharmacy v Perales, 770 F Supp 168; Matter of Society of N. Y. Hosp. v Axelrod, 116 AD2d 426, 70 NY2d 467; Matter of Richmond Mem. Hosp. & Health Ctr. v Axelrod, 150 AD2d 581.)
   OPINION OF THE COURT

Titone, J.

This appeal raises the question we left open in New York State Assn, of Counties v Axelrod (78 NY2d 158, 166) (NY-SAC): what Statute of Limitations should be applied to declaratory judgment actions brought to challenge promulgated Medicaid reimbursement rates on the ground that they are irrational or affected with error of law. Reaffirming the principles that were articulated in such cases as Solnick v Whalen (49 NY2d 224), we hold that in the circumstances presented here the four-month Statute of Limitations for proceedings against a body or officer is applicable (see, CPLR 217).

Plaintiff, which operates both hospitals and residential care facilities, commenced this declaratory judgment action to challenge two separate aspects of its Medicaid reimbursement rate. The first part of plaintiff’s challenge sought relief from defendants’ effort to use a "recalibration adjustment” that was promulgated in December 1991 to calculate its residential-care facility rates for the rate years between 1989 and 1991 (10 NYCRR 86-2.31 [a]). The proper resolution of this issue is governed by Matter of Jewish Home & Infirmary v Commis sioner of N. Y. State Dept, of Health (84 NY2d 252 [decided herewith]), in which we hold that Public Health Law § 2807 (7) (a) prohibits such retroactive rate-making.

The second part of plaintiffs challenge involves a disputed change in the manner in which hospitals are reimbursed for services provided to certain of their patients. Effective January 1, 1988, defendants replaced their existing per-diem method of computing reimbursement with a new per-case approach. Services for patients whose hospital stays "straddled” the period before and after the new system’s effective date were initially to be reimbursed under the former perdiem computation method. However, by letter dated July 3, 1989, the Commissioner of Social Services, after consultation with the Department of Health (DOH) and the Division of the Budget, advised hospitals providing service to Medicaid recipients that only those "straddle” patients categorized as needing "acute” care would be subject to the apparently more favorable per-diem rate. Services to "alternative level of care” patients, i.e., those who could be cared for in residential nursing facilities, would be reimbursed on the newer per-case basis. Reimbursement amounts in excess of the allowable rates that had already been paid were to be recouped through reductions in current payments.

The July 3, 1989 rate decision was challenged in a timely CPLR article 78 proceeding brought by the Hospital Association of New York State (Matter of Hospital Assn, v Axelrod, 165 AD2d 152 [Feb. 14, 1991], lv denied 78 NY2d 853) (HA-NYS). Although it was aware of the HANYS litigation, plaintiff, which is not a member of the Hospital Association, decided not to intervene or commence a separate suit, choosing instead to rely on that organization’s efforts to obtain relief.

The Appellate Division held in HANYS that the statute governing reimbursement for "straddle patients” did not leave room for distinguishing between "acute care” patients and "alternative level of care” patients. Accordingly, the policy was deemed arbitrary and unlawful (165 AD2d, at 154-155). As a result of that decision, defendants, who represent agencies responsible for administering the Medicaid program, were ordered to repay to the Hospital Association and its members any funds that had been withheld or recouped pursuant to the invalidated decision.

In October of 1991, plaintiff applied for a refund of moneys that defendants had recouped pursuant to the rule invalidated in HANYS. After it was advised that defendants did not intend to grant such a refund, plaintiff promptly brought the present proceeding in February 1992 to challenge both the July 3, 1989 rule and the more recent refusal of its refund request.

On cross motions for summary judgment, the Supreme Court ordered defendants to recalculate plaintiff’s nursing home reimbursement rate without regard to the "recalibration adjustment.” With respect to the claims that were based upon the invalidated "straddle patient” rate determination, Supreme Court concluded that the four-month Statute of Limitations for CPLR article 78 proceedings was applicable and that, accordingly, those claims were time-barred.

On plaintiffs appeal, the Appellate Division affirmed the first aspect of Supreme Court’s ruling, but reversed on the latter point. Holding that the action was, in reality, one for reimbursement under title XIX of the Social Security Act (42 USC § 1396 et seq.), the Appellate Division cited the Second Circuit’s decision in Hollander v Brezenoff (787 F2d 834), applied the three-year limitations period for actions to recover on a liability imposed by statute (CPLR 214 [2]) and ruled the action timely. Inasmuch as the merits had previously been resolved in HANYS (supra), the Court granted plaintiff summary judgment on its claim for a refund. This appeal, taken by permission of this Court, ensued.

Initially, we note that the Appellate Division’s reliance on Hollander v Brezenoff (supra) was misplaced. The only issue in Hollander was whether a proceeding to enforce a social service agency’s obligation to pay a Medicaid provider was governed by the six-year limitations period for actions on a contractual obligation (CPLR 213 [2]) or was instead governed by the three-year period for actions on a liability imposed by statute (CPLR 214 [2]). The court was not called upon to consider whether the shorter four-month limitations for proceedings against a body or officer (CPLR 217) was applicable. Consequently, its holding has no persuasive significance here.

The proper starting point for determining which Statute of Limitations should be applied in a proceeding or action against a State or municipal governmental entity is this Court’s 1980 decision in Solnick v Whalen (49 NY2d 224, supra). In that case, the Court held that when the proceeding has been commenced in the form of a declaratory judgment action, for which no specific Statute of Limitations is prescribed, "it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought” in order to resolve which Statute of Limitations is applicable (49 NY2d, at 229; cf., Koemer v State of New York, 62 NY2d 442, 447 [Solnick rule does not govern when "a specific limitations period is clearly applicable to a given action, (and) there is no need to ascertain whether another form of proceeding is available”]). Only if there is no other "form of proceeding for which a specific limitation period is statutorily provided” may the six-year catch-all limitations period provided in CPLR 213 (1) be invoked (49 NY2d, at 229-230). In other words, if the claim could have been made in a form other than an action for a declaratory judgment and the limitations period for an action in that form has already expired, the time for asserting the claim cannot be extended through the simple expedient of denominating the action one for declaratory relief (49 NY2d, at 230; accord, Press v County of Monroe, 50 NY2d 695, 701). Of course, when the claim is one against a governmental body or officer, the form of action that immediately springs to mind is a proceeding brought under CPLR article 78, a traditional, and surely the most common, vehicle for challenging a governmental decision or action.

Plaintiff contends that an article 78 proceeding is inapplicable here because the challenged agency decision is legislative in nature in that it applies across the board to all hospitals providing care to "straddle patients.” In support of this position, plaintiff cites a line of cases holding that article 78 does not lie to challenge a legislative act (e.g., Bryant Ave. Tenants’ Assn. v Koch, 71 NY2d 856; Matter of DuBois v Town Bd., 35 NY2d 617; Matter of Kovarsky v Housing & Dev. Admin., 31 NY2d 184; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449). However, despite the unquestionable validity of this line of cases, we conclude that further analysis is necessary because there remains some confusion as to what constitutes a "legislative act” (compare, Press v County of Monroe, supra, at 703-704, with id., at 704-706 [Jasen, J., dissenting], and Sol-nick v Whalen, supra, at 231; see, 8 Weinstein-Korn-Miller, NY Civ Prac j| 7801.02, at 78-11), and, consequently, the formula on which plaintiff relies is insufficient to resolve the issue presented by plaintiff’s case.

Among the apparent sources of the confusion is Matter of Lakeland Water Dist. v Onondaga County Water Auth. (24 NY2d 400), in which the Court held that article 78 was unavailable to challenge a rate decision made by a public benefit corporation charged with the responsibility of regulating the price of water to private customers and water districts. Drawing on the principle that an article 78 proceeding may not be used to review legislative action, the Lakeland Court reasoned that "an order of an administrative agency fixing rates is deemed a legislative act, at least where no provision has been made for notice and a hearing” (id., at 407). Inasmuch as the rate determination at issue was not subject to any notice and hearing requirements, the Court concluded, it was legislative in nature and not subject to article 78 review (24 NY2d, at 409).

Lakeland was followed by Solnick v Whalen (supra, at 231-232, and n 3), in which this Court, in an effort to explain that decision, suggested that an agency rate-setting determination may be "legislative” or "administrative” depending upon whether it is an "across-the-board” ruling or is instead determinative only of an "individualized rate[ ] established for a particular litigant”. However, in Press v County of Monroe (supra), a case involving a generally applicable rate schedule, the Court simply relegated the analysis in Lakeland to a "cf. ” citation and did not follow, or even discuss, the Solnick distinction. Instead, it referred to an entirely different principle, i.e., that article 78 is not the proper vehicle for challenging the constitutionality of a legislative enactment (see, e.g., Matter of Ames Volkswagen v State Tax Commn., 47 NY2d 345, 348; New York Pub. Interest Research Group v Steingut, 40 NY2d 250, 254; Matter of Merced v Fisher, 38 NY2d 557, 559) and then went on to hold that the rate-setting decision at issue was not "legislative” because it lacked a number of traits that ordinarily characterize enactments of a legislative body (50 NY2d, at 701-704). Despite Press, subsequent cases involving rate setting and other types of governmental determinations have relied on the Solnick distinction between generalized and individualized decision-making (see, e.g., Matter of Klein v Axelrod, 54 NY2d 818, affg 81 AD2d 935; cf, Eve v Power Auth., 123 AD2d 532 [relying on Lakeland distinction premised on notice and hearing requirements]; but cf., Lenihan v City of New York, 85 AD2d 562, affd 58 NY2d 679).

Viewed in the proper light, the difficulty in this field seems to lie not in the rationales or results of the salient cases, but rather in the ambiguity of the terminology and the absence of a cohesive analytical structure to lend perspective to the existing case law. The case law often does not distinguish between true legislative acts and those administrative acts that are deemed "quasi-legislative,” and there has been little reasoned discussion as to why the latter class of acts should necessarily be treated in the same way as the former. Moreover, while it may be helpful to consider the distinctions drawn in Lakeland and Solnick between generalized and individualized decision-making and the existence or nonexistence of a notice-and-hearing requirement, these categories cannot adequately be understood in the legal and historical vacuum in which they are often discussed.

The maxim that article 78 does not lie to challenge legislative acts is derived from the separation-of-powers doctrine which made the use of the judiciary’s "prerogative writ” unavailable as a vehicle for challenging an act of a legislative body (e.g., Matter of Neddo v Schrade, 270 NY 97; Matter of Long Is. R. R. Co. v Hylan, 240 NY 199; People ex rel. Trustees of Vil. of Jamaica v Board of Supervisors, 131 NY 468; see, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C7801:l, at 25 [1981]). That same principle, however, has no application to the quasi-legislative acts of administrative agencies. With respect to those acts, there is no reason why article 78 review in the nature of "mandamus to review” should not be available to the extent that the challenge fits within the language and accompanying gloss of CPLR 7801 and 7803 (3).

CPLR 7801 provides that the relief historically available by the former writs of certiorari to review, mandamus and prohibition are all available now through proceedings brought under article 78. CPLR 7803 supplements that provision by setting forth "[t]he only questions that may be raised in a proceeding under * * * article [78].” Taken together, these statutes and the body of common law they incorporate are necessarily the prime reference points for determining whether a particular claim against a public body or officer may be brought in the form of an article 78 proceeding. Thus, where a quasi-legislative act by an administrative agency such as a rate determination is challenged on the ground that it "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3]), a proceeding in the form prescribed by article 78 can be maintained and, as a corollary matter, the four-month Statute of Limitations that ordinarily governs such proceedings is applicable.

To be sure, in most situations, agencies’ generally applicable decisions do not lend themselves to consideration on their merits under the provisions for mandamus to review, because they concern rational choices among competing policy considerations and are thus not amenable to analysis under the "arbitrary and capricious” standard. Nonetheless, there are certainly cases in which even a nonindividualized, generally applicable quasi-legislative act such as a regulation or an across-the-board rate-computation ruling can be challenged as being "affected by an error of law,” "arbitrary and capricious” or lacking a rational basis (CPLR 7803 [3]). The claim raised by plaintiff here presents precisely such a case.

As did the petitioners in HANYS, plaintiff here is claiming that defendants’ decision concerning the proper method for computing the reimbursement rate for "straddle patients” was unlawful and arbitrary and capricious in that it had no foundation in the relevant statutes (see, HANYS, 165 AD2d, at 154-156, supra). The nature of plaintiffs claim requires it to convince the court that defendants promulgated a rule affecting hospital rates that represented an irrational construction of the governing statutes. Such a claim is plainly encompassed within the grounds for mandamus to review set forth in CPLR 7803 (3), which include "whether a determination * * * was affected by an error of law or was arbitrary and capricious” (see also, NYSAC, supra [claim that rate adjustment regulation was arbitrary because it was not based on empirical facts]). Additionally, since the claim concerns a quasi-legislative act of an administrative agency rather than a true legislative enactment, there is no sound basis for invoking the historical bar precluding use of the prerogative writ as a vehicle for reviewing true legislative acts, even though the regulation in question is indisputably one of general applicability. Accordingly, plaintiffs challenge could have been brought in the form of an article 78 proceeding, and the present action, brought more than 2Vz years after the July 3, 1989 letter advising of defendants’ policy was sent, was untimely.

We note that our holding with regard to the Statute of Limitations question presented here is in accord with the public policies identified in Solnick v Whalen (supra, at 232) and reiterated in Press v County of Monroe (supra, at 704). A rule that requires those subject to regulatory decisions such as Medicaid rate-making to bring their challenges promptly facilitates rational planning by all concerned parties and ensures " 'that the operation of government [will] not be trammeled by stale litigation and stale determinations’ ” (Solnick v Whalen, supra, at 232, quoting Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352, 359 [Breitel, Ch. J., dissenting]).

We are not persuaded by plaintiff’s opposing contention that the policies represented by the decision in Matter of Jones v Berman (37 NY2d 42) militate against such a rule because it compels all potentially aggrieved litigants to bring duplicative suits rather than waiting to see what the outcome will be in a pending test case. In Jones, the Court held only that a class action is generally an inappropriate vehicle for asserting a claim against a governmental entity, since "where governmental operations are involved” similarly situated parties other than the individual litigant "will be adequately protected under the principles of stare decisis” (37 NY2d, at 57; accord, Matter of Rivera v Trimarco, 36 NY2d 747, 749). By its terms, that holding concerns itself only with the inefficiency of using the class action form when the prospective rights of interested nonlitigants can be safeguarded by other means. Nothing in the Jones decision suggests that the same policies justify either the use of a long limitations period or the creation of a toll solely to enable aggrieved parties to sit on their existing rights pending the outcome of an early challenge brought by others (cf., American Pipe & Constr. Co. v Utah, 414 US 538, 554).

Finally, inasmuch as plaintiff had lost the right to challenge the validity of the underlying rate decision through its own inaction, it had no legal basis for its October 1991 post-HANYS demand for a refund of the moneys that had been recouped pursuant to the recently invalidated "straddle patient” policy. Thus, to the extent that plaintiff’s complaint asserted a timely cause of action based on the refusal of that demand, the claim was lacking in substantive merit and was properly rejected. We decline to adopt plaintiff’s contention that equal protection principles guarantee it the same relief as was afforded to the members of the Hospital Association of New York, all of whom received refunds after the HANYS decision was handed down. Since the Hospital Association was a party in HANYS and had standing to represent its members, defendants could rationally distinguish between those members, whose rights had been adjudicated in HANYS, and plaintiff, a nonparty whose rights had not been addressed in that or any other judicial proceeding. Plaintiffs argument that its property was taken without just compensation is equally meritless, as is its contention that the HANYS judgment itself required that defendants give refunds to all affected hospitals. A plain reading of that judgment demonstrates that it granted relief only to the petitioners in the HANYS proceeding and to the represented member hospitals.

Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating the judgment of the Supreme Court and, as modified, affirmed.

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

Order modified, etc.

      . Indeed, it is the failure to recognize the critical distinction between true "legislative” acts of legislative bodies and the quasi-legislative acts of administrative bodies that renders the Court’s syllogism in Matter of Lake-land Water Dist. v Onondaga County Water Auth. (24 NY2d 400, 409, supra) fundamentally flawed.

      . The Solnick distinction between individualized and across-the-board administrative rate determinations may be viewed as consistent with, or at least overlapping, the Lakeland distinction premised on the presence or absence of a provision for advance notice and a hearing, since notice and hearing requirements are often associated with decision-making aimed at individual rights. In the article 78 context, however, it is important to recognize that there are different types of hearings with different legal consequences. Evidentiary hearings that are constitutionally required and have some of the characteristics of adversary trials, including cross-examination, result in "quasi-judicial” determinations that are subject to article 78 review in the nature of certiorari, where the "substantial evidence” inquiry is applicable (see, cg., Matter of Older v Board of Educ., 27 NY2d 333; see generally, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C7801:2, at 26-27 [1981]). Hearings that are not required as a matter of due process, in contrast, result in what have been termed "administrative” determinations, which are subject to review only by mandamus and are governed by the "arbitrary and capricious” standard (McLaughlin, op. cit., at 28-29). This class of hearings, which may result in either individualized or across-the-board determinations, can, in turn, be divided into at least two separate categories: (1) those in which an agency or body will give notice to either the public at large or the affected segments of the public and will thereafter hold a nonevidentiary public hearing and (2) those in which an agency will give notice to the individual regulated concerns and afford them an opportunity to be heard, again in a nonevidentiary forum. In both of these instances, the resulting determination is usually deemed "quasi-legislative” and is reviewable, if at all, by mandamus to review. Because of this variety in the types of notice and hearings that may be held, Lakeland’s reference to "notice and hearing” as a means of distinguishing reviewable administrative acts from those that are immune from article 78 review is, at best, misleading. Indeed, as noted, in most cases where "provision has been made for notice and a hearing” (24 NY2d, at 407, supra), the resulting determination is quasi-judicial and the availability of mandamus to review is irrelevant.

      . Of course, in a proper case, other means may exist to challenge true legislative enactments on the grounds that they are unconstitutional, ultra vires or adopted in violation of lawful procedure (see, e.g., Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202; Matter of Ames Volkswagen v State Tax Commn., 4tl NY2d 345, supra).

      . The questions set forth in CPLR 7803 (1) and (2) are generally applicable only to proceedings in the nature of mandamus to compel and prohibition, respectively (see, McLaughlin, op. cit., CPLR C7803:l, at 331 [1981]). The question set forth in CPLR 7803 (4) pertains only to certiorari proceedings to review quasi-judicial determinations (McLaughlin, op. cit.; see, n 2, supra).

        . This circumstance may well have been what the Solnick Court had in mind when it distinguished between across-the-board determinations and those that affected only identified individuals (49 NY2d, at 231, supra).


author: Levine, J.

text:
    [639 NE2d 746, 616 NYS2d 7]
    The People of the State of New York, Respondent, v Jeffrey Baxley, Appellant.
    Argued June 8, 1994;
    decided June 30, 1994

      POINTS OF COUNSEL

      Harold V Ferguson, Jr., New York City, and Philip L. Weinstein for appellant.
    I. The prosecutor’s conscious and deliberate decision to withhold Youmans’ exculpatory evidence from the defense because the prosecutor personally disbelieved Youmans violated appellant’s due process right to a fair trial. (Berger v United States, 295 US 78; People v Sweet, 78 NY2d 263; People v Steadman, 82 NY2d 1; People v Pelchat, 62 NY2d 97; People v Jones, 44 NY2d 76; Brady v Maryland, 373 US 83; People v Vilardi, 76 NY2d 67; United States v Bagley, 473 US 667; United States v Agurs, 427 US 97; People v Gruden, 42 NY2d 214.) II. The trial court abused its discretion when it summarily denied appellant’s CPL 440.10 motion without ordering an evidentiary hearing on the newly discovered evidence. (People v Rivera, 119 AD2d 517; People v Rodriguez, 88 AD2d 890; People v Priori, 164 NY 459; People v Salemi, 309 NY 208, 350 US 950; People v Lavrick, 146 AD2d 648; People v Crimmins, 38 NY2d 407; People v Qualls, 70 NY2d 863; People v Shilitano, 218 NY 161; Sanders v Sullivan, 863 F2d 218; Durley v Mayo, 351 US 277.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Gary Fidel and Steven J. Chananie of counsel), for respondent.
    The Court below correctly found that the trial court did not abuse its discretion when it denied defendant’s motion to vacate the judgment of conviction without a hearing. (People v Crimmins, 38 NY2d 407; People v Shilitano, 218 NY 161; People v Donald, 107 AD2d 818; People v Dukes, 106 AD2d 906; People v Coates, 74 NY2d 244; People v Prochilo, 41 NY2d 759; People v Session, 34 NY2d 254; People v White, 309 NY 636; People v Vilardi, 76 NY2d 67; United States v Bagley, 473 US 667.)
   OPINION OF THE COURT

Levine, J.

On July 15, 1985, during the course of a robbery of a food concession stand at Rockaway Playland, Queens, Regina Carter, an employee, was killed by a single shot from a 12-gouge shotgun. Some six months later, defendant was arrested for the murder/robbery. The arrest was based upon the written statements of four police informants, friends or acquaintances of defendant, regarding conversations in which he made oral admissions to having killed Carter. The informants were Michael Washington, Sammy Youmans, Sheila McKinney and Tanya Alston. Washington and Youmans were in custody in the same police lockup cell, on unrelated robbery charges, at the time they gave their statements. McKinney had open juvenile cases then pending for robbery and assault.

Of the four informants, only Washington and McKinney testified at defendant’s trial and, undisputedly, their testimony was the principal evidence of defendant’s guilt. Defendant was found guilty of three counts of second degree murder, two counts of robbery in the first degree and two counts of burglary in the second degree. Some three years and two months after the imposition of judgment and sentence upon defendant, he brought the instant application, pursuant to CPL 440.10 to vacate his conviction on three grounds, only two of which are at issue here: (1) newly discovered evidence (see, CPL 440.10 [1] [g]); and (2) the prosecution’s failure to disclose exculpatory evidence in violation of defendant’s State and Federal constitutional rights to due process (see, CPL 440.10 [1] [h]).

The newly discovered evidence primarily consisted of the sworn statements of Washington and McKinney recanting their testimony at defendant’s trial. McKinney’s recantation comprised a single sentence in which she denied ever hearing defendant say he killed Regina Carter. However, she stood by her testimony of having seen defendant with a shotgun several months after the murder. Washington also denied that defendant confessed the murder to him and averred that his testimony at defendant’s trial had been false. He explained that he gave the statement and testimony against defendant because he was under charges and "believed that it was in my best interest to cooperate with the District Attorney’s office”.

In support of defendant’s alternative ground for vacating the conviction, based upon the failure of the People to disclose exculpatory evidence as a denial of due process under Brady v Maryland (373 US 83), defendant submitted the affidavit of the informant Sammy Youmans, who was not called as a prosecution witness at the trial. In his affidavit, Youmans stated that he and Washington were induced to falsely accuse defendant of the Carter murder/robbery by a police promise of leniency on their then pending charges. He further averred that he had been scheduled to testify as a People’s witness at defendant’s trial, but that before being called he told the prosecutor that he had been forced by the police to make a false statement implicating defendant. Finally, Youmans swore that "[defendant] never told me or to my knowledge, Michael Washington, that he killed Regina Carter”.

The principal affidavit in opposition to defendant’s motion was by the Assistant District Attorney appearing on defendant’s motion, not the trial assistant who prosecuted defendant. The affidavit was based upon information and belief, the source of which was a review of the District Attorney’s file on the case and a discussion with the trial prosecutor. In that discussion, the trial prosecutor confirmed only that Youmans had recanted his statement before the trial began, and explained that the recantation, which he believed was perjurious, was the reason he chose not to call Youmans as a witness.

Supreme Court denied defendant’s CPL 440.10 application without a hearing. The Appellate Division affirmed the judgment of conviction and sentence, and the denial of defendant’s 440.10 motion (194 AD2d 681). That Court held that it was within the discretion of Supreme Court to deny defendant’s motion, insofar as it was based upon newly discovered evidence consisting almost completely of the mere recantations by the People’s witnesses. The Appellate Division also found no Brady violation. The appeal is now before us pursuant to leave granted by a Judge of this Court and we now modify and remit for a hearing on the Brady issue on defendant’s 440.10 motion.

As to defendant’s appeal from the denial of that portion of his motion to vacate the judgment of conviction on the basis of newly discovered evidence, we note that the Washington and McKinney recantations do not aver that their prior statements or testimony against defendant were the products of police or prosecutorial misconduct. Thus, that portion of defendant’s motion does not fall within any exception to the general rule that the power to vacate a criminal conviction and grant a new trial for newly discovered evidence rests within the unlimited discretion of the lower courts and is, thus, beyond review by this Court (see, People v Brown, 56 NY2d 242, 246; People v Crimmins, 38 NY2d 407, 415; see also, People v Smith, 63 NY2d 41, 66, n 4, cert denied 469 US 1227).

Contrariwise, insofar as defendant seeks postjudgment relief under CPL 440.10 (1) (h), alleging that his conviction was procured in violation of his due process right to pretrial disclosure of Brady material, such a due process claim was subject to postjudgment judicial review via a writ of error coram nobis before the enactment of CPL article 440 (see, People v Silverman, 3 NY2d 200) and, therefore, is reviewable by this Court to determine whether the denial of this portion of defendant’s motion without a hearing constituted an abuse of discretion as a matter of law (see, People v Crimmins, 38 NY2d, at 418-419, supra). We conclude that it was, and that the order of the Appellate Division should be modified by remitting the case to Supreme Court for a hearing to resolve questions of fact under CPL 440.30 (5).

As previously described, the Youmans affidavit can be read as averring that, just before he was slated to testify against defendant at the trial, he informed the prosecutor that both he and Washington had been induced to falsely accuse defendant of the murder of Carter at the Rockaway Playland and that he further informed the prosecutor that defendant never told him "or to my knowledge, Michael Washington” that he had killed Carter.

Youmans’ own recantation of his pretrial statements to the prosecutor before the trial cannot in and of itself be deemed Brady material because he was never called as a witness to testify at defendant’s trial (or indeed at the pretrial hearings). Defendant has not demonstrated on these facts that this nontestifying person’s denial that defendant ever confessed to him would have been exculpatory, i.e., favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses (see, People v Novoa, 70 NY2d 490, 496). However, to the extent that he also averred that he informed the prosecutor that Washington, undoubtedly a Crucial prosecution witness, was induced to make a false statement and would give false testimony regarding defendant’s admissions to the killing, the affidavit, if truthful in claiming that that communication with the prosecutor occurred, established the existence of Brady material which the prosecutor was obligated to disclose. A prosecutor’s duty of disclosing exculpatory material extends to disclosure of evidence impeaching the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence (People v Fein, 18 NY2d 162, cert denied 385 US 649; see, Giglio v United States, 405 US 150, 154; see, People v Stead-man, 82 NY2d 1, 7). Clearly, Washington was such a witness at defendant’s trial, and nondisclosure cannot be excused merely because the trial prosecutor genuinely disbelieved Youmans’ recantation. The "good faith” of a prosecutor is not a valid excuse for nondisclosure (Giglio v United States, supra).

Youmans’ averments impeaching Washington’s trial testimony were surely not insufficient as a matter of law to establish a Brady violation (see, CPL 440.30 [4] [a], [b]; cf., People v Brown, 56 NY2d 242, 246-247, supra). Moreover, his allegations were neither "conclusively refuted by unquestionable documentary proof’ (CPL 440.30 [4] [c]), nor "contradicted by a court record or other official document, or * * * made solely by the defendant and * * * unsupported by any other affidavit or evidence” (CPL 440.30 [4] [d] [i]); nor were there other circumstances here establishing that "there is no reasonable possibility that [Youmans’] allegation^] [are] true” (CPL 440.30 [4] [d] [ii]). Accordingly, Supreme Court was not statutorily authorized to deny defendant’s motion without a hearing.

Conversely, the People’s papers in opposition clearly did not concede the truth of Youmans’ averments that he had given evidence to the prosecutor before trial that would have impeached Washington’s testimony, and his averments are not "conclusively substantiated by unquestionable documentary proof’ (CPL 440.30 [3] [c]). Thus, Supreme Court was not compelled to grant defendant’s motion to vacate the judgment of conviction without a hearing, and indeed a hearing should have been directed (CPL 440.30 [5]).

Consequently, the order of the Appellate Division should be modified by remitting the case to Supreme Court for an evidentiary hearing on defendant’s CPL 440.10 motion. At such a hearing the court must determine first, whether, in fact, Youmans communicated Brady material which was not disclosed to the defense. If so, there having been only a general request for Brady material, the hearing court must determine in the first instance whether, in the context of the entire trial, the omitted evidence creates a reasonable doubt that did not otherwise exist (see, United States v Agurs, 427 US 97, 112-113; People v Chin, 67 NY2d 22, 33; People v Smith, 63 NY2d 41, 67, supra; see also, United States v Bagley, 473 US 667, 682; cf., People v Vilardi, 76 NY2d 67). If so, the judgment of conviction must be vacated and a new trial ordered. If not, the motion to vacate should be denied.

Accordingly, the order of the Appellate Division should be modified by remitting the case to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

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

Order modified and case remitted to Supreme Court, etc.