author: Simons, J.

text:
    [653 NE2d 1150, 629 NYS2d 980]
    Lyndon P. Sharrow, Respondent, v Dick Corporation et al., Defendants and Third-Party Plaintiffs-Respondents; G & H Steel Service, Inc., Third-Party Defendant-Appellant.
    Argued May 4, 1995;
    decided June 14, 1995

      POINTS OF COUNSEL

      Hurwitz & Fine, P. C., Buffalo (Theodore J. Burns of counsel), for appellant.
    I. The evidence does not support a finding of a violation of section 241 (6) of the Labor Law. II. This Court has the power to review the question of whether Ross v Curtis-Palmer Hydro-Elec. Co. should be applied to this case. (Sharrow v Dick Corp., 204 AD2d 966; Persky v Bank of Am. Natl. Assn., 261 NY 212; Telaro v Telaro, 25 NY2d 433; Competello v Giordano, 51 NY2d 904; Matter of Kahn [National City Bank], 284 NY 515; Kelly v Long Is. Light. Co., 31 NY2d 25; Graybar Elec. Co. v New Amsterdam Cas. Co., 292 NY 246.) III. The third-party defendant was deprived of its constitutional right to a trial by a jury of six persons. (Arizmendi v City of New York, 56 NY2d 753; People v Pickett, 61 NY2d 773; Schabe v Hampton Bays Union Free School Dist., 103 AD2d 418.) IV. The complaint against defendants should be dismissed in order to fashion complete relief to G & H Steel. (Hecht v City of New York, 60 NY2d 57; United States Print. & Lithograph Co. v Powers, 233 NY 143; Cover v Cohen, 61 NY2d 261; Stiles v Batavia Atomic Horseshoes, 81 NY2d 950.)

      Kevin J. Bauer, Buffalo, Brown & Kelly and O’Shea, Reynolds & Cummings for defendants and third-party plaintiffs-respondents.
    The nonappealing defendants, Dick Corporation and Southern Steel Corporation, are entitled to the benefit of any disposition of the instant appeal which is favorable to the third-party defendant-appellant G & H Steel Service, Inc. (Hecht v City of New York, 60 NY2d 57; Frankel v Berman, 10 AD2d 838; Cover v Cohen, 61 NY2d 261; Stiles v Batavia Atomic Horseshoes, 81 NY2d 950.)

      Walsh, Roberts & Grace, Buffalo (Gerald Grace, Jr., of counsel), for respondent.
    I. The sufficiency of plaintiff’s allegations and proof of a violation of Labor Law § 241 (6) pursuant to Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494) is an issue not preserved for appellate argument. (Matter of Alscot Investing Corp. v Board of Trustees, 64 NY2d 921; Beltz v City of Buffalo, 61 NY2d 698; Simon v Schenectady N. Congregation of Jehovah’s Witnesses, 132 AD2d 313; Rosen v McGuire & Bennett, 189 AD2d 966; Cappiello v Telephone Intl. Corp., 193 AD2d 478; Nagle v Metzger, 103 AD2d 1; Leon v J & M Peppe Realty Corp., 190 AD2d 400; Ares v State of New York, 80 NY2d 959.) II. This Court’s decision in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494) does not warrant dismissal of plaintiff’s complaint. (Macellino v Buffalo Gen. Hosp., 123 AD2d 507; Bloomfield v General Elec. Co., 198 AD2d 655.) III. Defendants-respondents, Dick Corporation and Southern Steel Corporation, as nonappealing defendants who have stipulated to the entry of judgment against them are entitled to no relief from this Court other than affirmance. (Hecht v City of New York, 60 NY2d 57; Cover v Cohen, 61 NY2d 261; Bellevue S. Assocs. v HRH Constr. Corp., 78 NY2d 282; Rumpf v Gotham Ford, 44 AD2d 792, 34 NY2d 952; Desa v City of New York, 188 AD2d 313; Sommers v Sommers, 203 AD2d 975; Monte v DiMarco, 192 AD2d 1111; Baecher v Baecher, 95 AD2d 841; Matter of Araujo v Araujo, 38 AD2d 537; Baker v Northeastern Indus. Park, 73 AD2d 753.) IV. A verdict need not be unanimous in a civil case. A five-sixth verdict will suffice under CPLR 4113 (a). (Muth v J & T Metal Prods. Co., 74 AD2d 898; Waldman v Cohen, 125 AD2d 116; Arizmendi v City of New York, 56 NY2d 753.)
   OPINION OF THE COURT

Simons, J.

The dispositive issue in this appeal is whether the trial court erred in refusing to conduct a limited inquiry to determine whether six jurors participated in the deliberations on all the issues submitted to the jury. Because one juror’s responses during the poll of the jury suggested she may not have participated in all of the jury’s deliberations, we conclude that the order of the Appellate Division must be reversed, the judgment vacated, and a new trial ordered.

Plaintiff Lyndon Sharrow, an iron worker employed by third-party defendant G & H Steel, was injured while using a Genie hoist to move a metal lockbox during construction of the Southport Correctional Facility. He brought this action against defendant Dick Corporation, the general contractor, and defendant Southern Steel Corporation, the subcontractor for the project, alleging common-law negligence and violations of sections 200, 240 (1) and 241 (6) of the Labor Law. Defendants in turn brought a third-party action for contribution and indemnification against G & H Steel, plaintiff’s employer. Prior to trial, Dick and Southern successfully moved for summary judgment against G & H Steel for common-law and contractual indemnification. At trial, plaintiff withdrew all his claims except that for violation of Labor Law § 241 (6) and the action proceeded on that claim alone.

At the conclusion of the jury’s deliberations, the foreperson announced that five members of the jury had agreed to a verdict finding defendants’ violation of the statute the proximate cause of plaintiff’s injuries and awarding him damages in the amount of $430,000. Counsel for G & H Steel requested that the jury be polled. Departing from the usual procedure, the court clerk conducted the poll by reading each question on the verdict sheet and then asking each juror in turn his or her verdict on the question. When the first question was asked— whether there was a violation of the Labor Law for which defendants were liable — juror No. 5 stated that her answer was "No.” The clerk then read the second question — whether the Labor Law violation was a proximate cause of plaintiff’s injuries — and again asked each juror "[w]hat is your verdict?” The transcript reflects juror No. 5’s reply: When the poll on the third question — concerning the total amount of damages necessary to compensate plaintiff— reached juror No. 5, she apparently did not immediately answer. The transcript contains this exchange:

"juror number five: I had no—
"the clerk: Your verdict is no?
"the court: Well, she didn’t make a determination because she didn’t move on [sic]. ”
"the clerk: Number 5? No response?
"juror number five: No.”

To the remaining three questions, involving specific items of damages and of plaintiffs possible negligence, juror No. 5 replied "No response.”

At the conclusion of the polling and before the jury was discharged, counsel for G & H Steel asked to approach the Bench and the court temporarily excused the jury. Counsel identified what he believed to be an inconsistency in the damage amounts stated by the foreperson. He also raised the separate question whether juror No. 5’s answers indicated that she had not voted on any of the questions after the first and may not have participated in the deliberations on any issue other than that of liability. Contending that G & H may have been deprived of a trial by a full jury of six members, counsel requested that the trial court conduct a "very limited questioning of this juror” to determine the extent of her participation in the deliberations. After discussion with all counsel, the trial court denied the request, and judgment was subsequently entered for plaintiff.

The Appellate Division, with two Justices dissenting, modified, by ordering a new trial on the question of damages for pain and suffering, unless defendants stipulated to an additur increasing the amount of that component of the award from $13,000 to $150,000 (204 AD2d 966). The majority of the court rejected the contention that defendants and third-party defendant G & H Steel had been deprived of the constitutional right to trial by six jurors, contending there was no evidence that juror No. 5 had refused to participate, or been prevented from participating, in the deliberations. In addition, the majority declined to review as unpreserved the argument that plaintiffs allegations of a Labor Law § 241 (6) violation were insufficient to meet the standard laid down in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494), decided by this Court after plaintiffs trial but before the appeal came on to be heard. Third-party defendant G & H Steel and defendant Southern appealed on the basis of the two-Justice dissent at the Appellate Division. Because defendants Dick and Southern had stipulated to the additur, we granted plaintiffs motion to dismiss Southern’s appeal on the basis of nonaggrievement (84 NY2d 976). Defendant Dick took no appeal. Thus, G & H Steel is the sole appellant before the Court.

We agree with the Appellate Division dissenters that the trial court erred in refusing to conduct a limited inquiry to determine whether juror No. 5 participated in the verdict process, an error that implicates the constitutional right to a trial by a six-member jury and mandates a new trial.

The common law required a jury of 12 members, and a unanimous verdict (see, Patton v United States, 281 US 276; Cancemi v People, 18 NY 128). In 1935, however, article I, § 2 of the New York Constitution was amended to authorize a legislative enactment permitting five-sixths jury verdicts in civil cases. The right to a jury trial was constitutionalized in its present form in 1938, and by then the Legislature had already enacted former Civil Practice Act 463-a (now CPLR 4113 [a]), authorizing the five-sixths verdict (see generally, 4 Weinstein-Korn-Miller, NY Civ Prac 4113.01 et seq.). When the Legislature subsequently provided, in 1972, that a civil jury "shall be composed of six persons” (see, CPLR 4104), the question arose whether a unanimous verdict rendered by five jurors was as valid as a verdict rendered by five sixths of a six-member jury. The intermediate appellate courts addressing the question were uniformly of the view that, absent the express consent of the parties, CPLR 4104 did not diminish a party’s right to a jury of six sworn to try the issues, and that all six jurors must participate in the deliberations leading to the verdict (see, Schabe v Hampton Bays Union Free School Dist., 103 AD2d 418; see also, Waldman v Cohen, 125 AD2d 116; Measeck v Noble, 9 AD2d 19).

In Arizmendi v City of New York (56 NY2d 753) we suggested our agreement with the view that the constitutional right to a jury trial contemplates that all six jurors participate in the deliberative process. Because we determined that the defendants had waived their objection to a juror’s nonparticipation by failing to raise it before the trial court, we did not directly address the issue then, but today we confirm that view and hold that where the parties to a civil case have not agreed to a trial by fewer than six jurors, a valid verdict requires that all six jurors participate in the underlying deliberations. The parties are entitled to a process in which each juror deliberates on all issues and attempts to influence with his or her individual judgment and persuasion the reasoning of the other five (see, Schabe v Hampton Bays Union Free School Dist., 103 AD2d 418, 427-428, supra). A juror, having disagreed with the remaining five on liability, must still participate in the deliberations. Otherwise, the jury becomes in essence one of five members only, less than the required number, and no valid verdict results from the deliberative process.

Plaintiff urges that there is "no evidence” here that juror No. 5 did not participate in all the deliberations in this case. That, however, is precisely the reason that the trial court should have conducted the limited inquiry requested, to resolve the doubts engendered by her answers during the poll. The court had the power to inquire into an "imperfect or incomplete” verdict before discharge of the jury (see, Porret v City of New York, 252 NY 208, 211) or if there was substantial confusion or ambiguity in the verdict (see, Pogo Holding Corp. v New York Prop. Ins. Underwriting Assn., 97 AD2d 503, 505, affd 62 NY2d 969) and it should have done so. A contemporaneous inquiry would have provided it with the opportunity to remediate the problem, or, if necessary, to order a new trial if no other permissible remedy was available (see, Barry v Man-glass, 55 NY2d 803, 806).

An inquiry to clarify a verdict before discharging a jury must be distinguished from an attempt to impeach a jury’s verdict after discharge. In considering the propriety of any posttrial inquiry into the validity of a verdict or indictment, the majority of jurisdictions have adopted, either by statute or in case law, the rule embodied in rule 606 (b) of the Federal Rules of Evidence. It directs that a juror may not testify "as to any matter or statement occurring during the course of the jury’s deliberations” except in cases when an inquiry into external influences on the jury is necessary. The policy considerations underlying this rule were first expressed by the United States Supreme Court in McDonald v Pless (238 US 264) when it addressed the admissibility of juror evidence impeaching, posttrial, a quotient verdict. In rejecting the use of the evidence, the Court identified three important policies to be furthered: ensuring the finality of verdicts, preventing juror harassment by disappointed litigants or their attorneys, and encouraging "frankness and freedom of discussion and conference” among the jurors (id., at 267-268; see also, Tanner v United States, 483 US 107, 120; see generally, Cammack, The Jurisprudence of Jury Trials: The No Impeachment Rule and the Conditions for Legitimate Legal Decisionmaking, 64 U Colo L Rev 57 [1993]). Although New York has not adopted a statute similar to rule 606 (b), our case law is consonant with its underlying principles (see, Kaufman v Lilly & Co., 65 NY2d 449, 460; People v De Lucia, 20 NY2d 275, 278; People v Redd, 164 AD2d 34; Russo v Jess R. Rifkin, D.D.S., P. C, 113 AD2d 570; Gamell v Mount Sinai Hosp., 40 AD2d 1010, appeal dismissed 32 NY2d 678). None of the policies enumerated in McDonald is compromised when the trial court itself, prior to discharge of the jury and entry of the verdict, undertakes a limited inquiry into an inconsistency or ambiguity in the jury’s verdict that is apparent from the jurors’ responses during polling.

The polling process here revealed such an ambiguity. Even if "no response” is considered the equivalent of "no award” in reply to the questions on damages, juror No. 5 also offered "no response” to the question whether plaintiff had been negligent. Her answers raised a legitimate question whether juror No. 5 had participated in the jury’s discussion of issues other than liability, and defense counsel appropriately requested a limited inquiry to clarify that juror No. 5 had participated in the deliberative process.

In People v Pickett (61 NY2d 773), we concluded that it was error for a trial court to refuse to conduct such an inquiry, to the extent that it could be carried out without infringing upon the secrecy or integrity of the jury’s deliberations. Here, a simple inquiry by the trial court into whether juror No. 5 had deliberated on all the questions before the jury would have been well within permissible bounds (cf. State v Drowne, 602 A2d 540 [RI] [adopting Pickett guidelines for conducting the inquiry, but ruling Trial Justice’s inquiry into juror’s "uncertain” verdict was improper where juror discussed the specific factors she considered in arriving at her verdict and defense counsel was permitted to question juror]).

Because a Trial Judge has wide discretion in determining whether to send the jury back for further deliberations, had juror No. 5 revealed that she had indeed failed to take part in the entirety of the jury’s deliberations, the trial court could have directed her to do so in a new round of jury deliberations. However, in the absence of any inquiry, the possibility remains that defendants’ constitutional right to trial by a full six-member jury was compromised. Accordingly, we see no remedy but to order a new trial. Moreover, because third-party defendant G & H Steel’s liability is entirely derivative, a new trial must be ordered with respect to the nonappealing defendants as well in order to afford complete relief to the appealing third-party defendant (see, Cover v Cohen, 61 NY2d 261).

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

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

Order reversed, with costs, and a new trial ordered.

      . Customarily, the reported verdict is read to the jury and then each juror is asked: “Is that your verdict?”, to which the juror responds yes or no (see, Supreme and County Court Operations Manual, State of New York, published by Office of Court Administration [Jan. 1991]).

        . Although Arizmendi, like this case, involved a unitary trial, the Committee on Pattern Jury Instructions subsequently applied Arizmendi to the more complex bifurcated trial as well, commenting that "[i]f there is a 5-1 vote on liability after the first stage of a bifurcated trial, all jurors, including the liability dissenter, are required to participate in the assessment of damages” (see, 1 NY PJI2d 32-33 [1995 Supp]).

      . The Appellate Division majority also relied on the proscription against posttrial juror questioning embodied in Civil Rights Law § 14. However, this statute is generally interpreted as a protection against subjecting a juror to civil or criminal liability for his or her conduct during deliberations or in rendering a verdict (see, Matter of Cochran, 237 NY 336).


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [653 NE2d 1154, 629 NYS2d 984]
    In the Matter of Bernadette L. Powers, Appellant, v Allen B. Powers, Respondent.
    Argued May 4, 1995;
    decided June 14, 1995

      POINTS OF COUNSEL

      Joseph Nichols, Glens Falls, and Jennifer A. Jensen for appellant.
    I. The Family Court did not improperly shift the burden of proof to respondent. (Matter of Porcelain v Porcelain, 94 Misc 2d 891; Matter of Reynolds v Oster, 192 AD2d 794; Matter of Department of Social Servs. v Hillock, 96 AD2d 625.) II. The Hearing Examiner did not use a "change of circumstance” standard to decide the violation petition. (Matter of Porcelain v Porcelain, 94 Misc 2d 891; Matter of Department of Social Servs. v Hillock, 96 AD2d 625.) III. The Family Court properly found respondent willfully failed to obey the order of support. (Farkas v Farkas, 201 AD2d 440; Bell v Bell, 181 AD2d 978; Matter of Farmer v Farmer, 123 Misc 2d 298.)

      Gregory V. Canale, Glens Falls, and William V. Canale for respondent.
    I. The violation hearing to determine whether respondent was in contempt impermissibly shifted the ultimate burden of proof onto respondent. (Matter of Carella v Collins, 144 AD2d 78; Matter of Cole v Cole, 65 AD2d 643; Matter of Schmerer v McElroy, 105 AD2d 840; Matter of Tucker v Tucker, 41 AD2d 995; Matter of Probation Adm’r v Prospero, 37 AD2d 759; Matter of Hall [Wells — Friedman], 35 AD2d 758.) II. It was error to hold respondent in contempt where the record failed to show that the court was presumptively satisfied that payment could not be enforced by sequestration of respondent’s assets. (Matter of Steinberg v Steinberg, 18 NY2d 492; Matter of Farmer v Farmer, 123 Misc 2d 298; Fordyce v Fordyce, 42 AD2d 961; Covello v Covello, 68 AD2d 818; Bell v Bell, 181 AD2d 978.)
   OPINION OF THE COURT

Chief Judge Kaye.

"As every practitioner knows, the problems of enforcing a support order could fill a book” (Besharov, Introductory Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act art 4, at 5). The present chapter in the sad volume already filled by the parties before us — parents of five minor children — centers on whether respondent father’s failure to pay support was established to be willful, justifying Family Court’s order of commitment for contempt. We conclude that the record supports Family Court’s determination and therefore reverse the Appellate Division order that overturned it.

The facts of this case begin with the parties’ divorce on May 16, 1990, by a final decree incorporating (but not merging) a May 7 separation agreement. The agreement provided that respondent — a self-employed certified public accountant— would pay petitioner child support of $225 per week and maintenance of $375 per week for 10 years, with maintenance decreasing after that time. As the ensuing recitation shows, the three years that followed the parties’ divorce were marked by petitioner’s persistent efforts to enforce the financial provisions of the separation agreement.

Barely three months after the divorce, on August 31, 1990, petitioner first sought enforcement of respondent’s obligation and he countered with a petition for modification. Before the year was out, on December 11, 1990, petitioner filed her first violation petition, which resulted in a decision and order dated March 13, 1991 granting petitioner judgment in the amount of arrears ($13,300), directing no change in the support obligation, and "reluctantly” concluding that respondent’s violation was not willful.

After a second violation petition filed the following month, the parties on November 8, 1991 entered into a stipulation in open court reducing maintenance to $250 per week (with the $125 difference accruing as arrears until Dec. 1, 1993), while continuing child support at $225 per week. Arrears as of November 8, 1991 totaled $13,080.

Weeks later, on January 22, 1992, petitioner filed yet a third violation petition and respondent cross-petitioned for downward modification of the support obligation. Respondent asserted his inability to pay because of a decline in income resulting in his "dire financial condition.” He also counterclaimed that petitioner was in better financial circumstances than he because she was gainfully employed and "living with a male person who has a substantial income” — and indeed that since 1991, they were holding themselves out as husband and wife, thereby vitiating the maintenance obligation. Respondent complained that deductions from his business checking account by reason of petitioner’s executions were impairing the cash flow of his business.

Before the Hearing Examiner some months later, respondent produced a 33-page schedule of weekly income and expenses for the period from September 29, 1991 to May 9, 1992, which he had prepared especially for the hearing. The schedule showed income for the seven-month period of $70,584 and expenses of $83,589 ($53,624 business and $29,965 personal expenses). Respondent submitted no substantiating documentation and no tax return for the year, claiming he had filed no tax return.

Respondent testified that he had additionally received some loans and gifts not reflected on the schedule. He further testified that he maintained no separate business or personal bank accounts and no checking account in his own name (in his words, "it wouldn’t stay there very long”) but deposited all his income in an account in the name of his current wife, who worked periodically for him and had no independent income.

Between the effective date of the November 8, 1991 stipulation and the close of evidence, respondent made less than half of the agreed-upon payments. Arrears grew by $8,425, reaching a total of $21,505.

Based on this evidence, the Hearing Examiner concluded that respondent’s violation was willful, characterizing his attempts to explain any changes in his situation since the November 8 in-court stipulation as "pathetic.” The Hearing Examiner found that respondent "presented no credible reason to overcome the presumption that nonpayment creates;” noted that he was a certified public accountant $21,505 in arrears who had stipulated to the disputed obligations; and directed respondent to appear before Family Court on July 17, 1992, for confirmation and sentencing.

On respondent’s cross petition to modify the support order, petitioner testified that she was an apprentice barber earning $300 to $400 per month and that her financial circumstances had not changed, but that she had been receiving approximately $200 in monthly rent. The Hearing Examiner found that respondent had "failed to present any proof that his financial condition had worsened since the November 8, 1991 stipulation.” Although respondent claimed that he was unaware of petitioner’s receipt of rent, the Hearing Examiner noted that such fact had existed when the stipulation was made and he refused to modify the order.

On August 7, 1992, Family Court confirmed the Hearing Examiner’s finding of willful violation, held respondent in contempt, and sentenced him to 60 days in the Saratoga County Jail. Sentence was suspended, however, on condition that respondent make payments in accordance with the stipulation.

Petitioner subsequently filed a fourth violation petition, along with an affidavit of the Supervisor of the Support Collection Unit dated December 16, 1992, stating that respondent was in arrears for $3,325 since the August 7 determination.

In a proceeding to establish respondent’s violation of the condition of his suspended sentence, Family Court confirmed the finding of willful violation, concluding from its own review of the record that there was "insufficient evidence to excuse or justify the Respondent’s failure to honor his support obligations and that the Hearing Examiner’s determination, dated June 5, 1992, that the Respondent was in wilful violation of his support obligations should not be disturbed.” On the issues raised by the cross petition, Family Court held that respondent had failed to submit competent evidence either justifying a downward reduction in his support obligation or establishing that petitioner was holding herself out as another person’s spouse.

On May 7, 1993 — the precise three-year anniversary of the parties’ separation agreement — Family Court ordered respondent’s suspended sentence revoked and committed him to the jail for a term of 60 days, or until he purged himself by payment of arrearages totaling $23,880.

The Appellate Division, one Justice dissenting, modified on the law by reversing the finding of contempt and order of commitment. The court held that, by reference to a "presumption” arising from nonpayment, the Hearing Examiner applied the wrong standard of proof and that respondent had sufficiently shown his inability to pay. According to the Appellate Division, "Family Court never found that respondent was financially capable and willfully failed to make the required payment.” (207 AD2d 637, 638.) We now reverse and reinstate Family Court’s order.

Analysis

Despite the extended factual scenario, the legal issue before us is a straightforward one: did petitioner sustain her burden of proof? Petitioner agrees that the burden of proof is hers to sustain, and that a finding of willful violation on which a person may be incarcerated requires clear and convincing evidence (an issue this Court has yet to determine).

The answer to the question posed begins with the relevant sections of the Family Court Act. As provided in section 454 (3), if a respondent is brought before court for failure to obey a lawful support order and, after hearing, the court is satisfied by competent proof that respondent indeed failed to obey such order, the court may "commit the respondent to jail for a term not to exceed six months”, if the failure was willful. Willfulness requires proof of both the ability to pay support and the failure to do so (Family Ct Act § 455 [5]).

A respondent is prima facie presumed in a hearing under section 454 to have sufficient means to support his or her spouse and children under the age of 21 (Family Ct Act § 437). For purposes of section 454, moreover, failure to pay support as ordered itself constitutes "prima facie evidence of a willful violation” (Family Ct Act § 454 [3] [a]). Thus, proof that respondent has failed to pay support as ordered alone establishes petitioner’s direct case of willful violation, shifting to respondent the burden of going forward (see, Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 454, at 388).

Respondent makes much of the Hearing Examiner’s reference to a "presumption” of willfulness arising out of nonpayment, a word that troubled the Appellate Division as well. Whatever the fine distinctions among the various categories of mandatory and permissive presumptions (dubbed "the slipperiest member of the family of legal terms” in 2 McCormick, Evidence § 342, at 449 [4th ed 1992]), without question Family Court Act § 454 (3) (a) speaks of prima facie evidence of a willful violation, not a presumption. Although the word "presumption” should not have been used, the Hearing Examiner’s inappropriate reference not only was immaterial in the context of his entire decision (he characterized respondent’s showing as "pathetic”) but was also rendered thoroughly inconsequential by Family Court’s own independent review of the record in light of the statute. We conclude that Family Court correctly applied the statute.

Petitioner undisputedly presented prima facie evidence of the willful violation of a lawful support order. The testimony of the Support Collection Unit Supervisor that from November 15, 1991 (the effective date of the November 8 open-court stipulation) to the hearing date June 3, 1992, respondent had made only 11 of the nearly 32 payments due satisfied the requirement for competent proof of nonpayment. At that point, the burden of going forward shifted to respondent to rebut petitioner’s prima facie evidence of a willful violation (see, Matter of Porcelain v Porcelain, 94 Misc 2d 891; see also, Richardson, Evidence §§ 95, 96, at 72 [Prince 10th ed]).

The parties differ on whether respondent satisfied this burden. Respondent urges that he did, and that the failing was petitioner’s, in the words of the Appellate Division, "to counter with affirmative proof of respondent’s financial ability to meet his support obligation” (207 AD2d, at 638). We agree with petitioner that respondent’s burden was not satisfied.

The burden of going forward required respondent to offer some competent, credible evidence of his inability to make the required payments (see, 2 McCormick, Evidence § 338, at 436 [4th ed 1992]; 9 Wigmore, Evidence § 2487, at 294 [Chadbourn rev 1981]). All that respondent showed, however, was that he had the ability to meet his support obligation — he acknowledged income in excess of $70,000 for a seven-month period— and that he spent, indeed overspent, his money on other things. As the Appellate Division dissenter observed, "respondent showed nothing other than the manner in which he chose to spend his substantial income during the period in question” (207 AD2d, at 639). A showing that respondent simply exhausted his funds, with no credible evidence indicating the necessity for placing his alleged expenses ahead of support payments to his former spouse and five children, did nothing to satisfy his burden of going forward on the issue of financial inability (see, Matter of Department of Social Servs. v Hillock, 96 AD2d 625 [evidence that respondent had income during the period and that he used that income to pay other debts is evidence of willful violation of the court order of support]).

Overlooked as well by the Appellate Division was the fact that, in open court, respondent had agreed to pay the amounts in issue. In determining whether petitioner satisfied her burden of proof, Family Court could surely have considered that respondent had the ability to pay reduced sums he represented to the court he would pay (see, Matter of Harp v McCann, 97 AD2d 868, 869 [respondent’s agreement to fund child’s education was subject to statutory presumption that he had sufficient means to pay]). Family Court was entitled to credit as well that respondent almost from Day One had defaulted on agreed-upon payments provided in the separation agreement resulting in a March 1991 judgment for arrearages; that he failed to meet reduced agreed-upon payments later in the year; and that he again failed to meet his commitment after sentence had been suspended in August on condition that he make the payments.

Family Court therefore correctly determined that respondent failed to meet his burden of going forward, and that petitioner sustained her burden of proving a willful violation justifying the finding of contempt and order of commitment.

Finally, in support of affirmance of the Appellate Division order respondent urges that Family Court could not find him in contempt for failing to make required payments unless it first concluded that there was no other way of enforcing the order of support. Respondent’s argument rests on Domestic Relations Law § 245 which requires Supreme Court to consider alternative means of enforcing a support order before holding the defaulting party in contempt. The flaw in the argument that Family Court should have no greater authority is that the two statutes are different. Unlike Domestic Relations Law § 245, Family Court Act § 454 explicitly allows the court a choice of probation or jail, without requiring that the court consider alternative enforcement measures.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of the Family Court, Saratoga County, granting petitioner’s application to hold respondent in contempt, reinstated.

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

Order reversed, etc.


text:
    [653 NE2d 1159, 629 NYS2d 989]
    In the Matter of New York State Dormitory Authority et al., Appellants, v Board of Trustees of Hyde Park Fire & Water District, Respondent.
    Argued April 27, 1995;
    decided June 29, 1995

      POINTS OF COUNSEL

      Corbally, Gartland & Rappleyea, Poughkeepsie (Jon Holden Adams of counsel), and Robert M. Cohen, Ballston Lake, for appellants.
    I. The methodology to allocate benefit units was unconstitutuional. (Knickerbocker Vil. v Reid, 256 App Div 973, 281 NY 861; State Univ. v Patterson, 42 AD2d 328; Norwood v Baker, 172 US 269; Louisville & Nashville R. R. Co. v Barber Asphalt Co., 197 US 430; Matter of Hun, 144 NY 472; Roosevelt Hosp. v Mayor of City of N. Y, 84 NY 108; Matter of O’Hara v Board of Supervisors, 42 Misc 2d 716, 24 AD2d 843; People ex rel. Delaware, Lackawana & W. R. R. Co. v Wildy, 262 NY 109; Baglivi v Town of Highlands, 147 AD2d 432; Nollan v California Coastal Commn., 483 US 825.) II. The lands of the Dormitory Authority are exempt from special assessments. (Matter of Symphony Space v Tishelman, 60 NY2d 33; Matter of Association of Bar v Lewishohn, 34 NY2d 143; Delancey St. Found, v Board of Assessment Review, 112 AD2d 132; Jensen v General Elec. Co., 82 NY2d 77; Matter of Di Brizzi [Proskauer] 303 NY 206; Matter of Caraballo v Community School Bd. Dist. 3, 49 NY2d 488; Wodetzky v Board of Educ., 173 Misc 136; Elmwood-Utica Houses v Buffalo Sewer Auth., 65 NY2d 489; Matter of Metropolitan Transp. Auth. v Imholz, 121 AD2d 724; Town of Cheektowaga v Niagara Frontier Transp. Auth., 82 AD2d 175.) III. The District’s dual standards violates equal protection. (Foss v City of Rochester, 65 NY2d 247; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1.) IV. The Board of Trustees failed to obtain voter approval to levy benefit assessments. (Mitchell v Town of Shelter Is., 3 Misc 2d 127, 2 AD2d 712; Albany Area Bldrs. Assn. v Town of Guilderland, 141 AD2d 293, 74 NY2d 372; County Sec. v Seacord, 278 NY 34; Coconato v Town of Esopus, 152 AD2d 39; Gautier v Ditmar, 204 NY 20; Matter of Bloomingdale Bros. v Chu, 70 NY2d 218; City of Buffalo v Cargill, Inc., 44 NY2d 7; Matter of Morse, 189 App Div 803; Eckelman v Anderson, 180 AD2d 618, 79 NY2d 759.) V. The 1989 allocation of units to the Culinary Institute was arbitrary and capricious. (Capolino Design & Renovation v Assessors of City of Yonkers, 138 Misc 2d 811; Elmhurst Fire Co. v City of New York, 213 NY 87; Matter of Adirondack Mtn. Reserve v Board of Assessors, 99 AD2d 600; Matter of Addis Co. v Srogi, 79 AD2d 856, 53 NY2d 603; Matter of Pepsi-Cola Co. v Tax Commn., 19 AD2d 56; People ex rel. Howlett v Mayor of City of N. Y., 63 NY 291; Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52.)

      Nixon, Hargrave, Devans & Doyle, Garden City (Thomas S. D Antonio and Claudia Hinrichsen of counsel), for respondent.
    I. Prior final orders foreclose relitigation of appellants’ repetitious claims. (O’Brien v City of Syracuse, 54 NY2d 353; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65; De Crosta v Reynolds Constr. & Supply Corp., 41 NY2d 1100; American Airlines v Transport Express, 55 AD2d 513, 42 NY2d 802; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481; Matter of Newsday, Inc. v Ross, 80 AD2d 1; Weiner v Greyhound Bus Lines, 55 AD2d 189.) II. The benefit assessment methodology adopted by the Board was fair and reasonable. (Matter of Scarsdale Chateaux RTN v Steyer, 52 AD2d 672, 41 NY2d 1043; Baglivi v Town of Highlands, 147 AD2d 432; Matter of City of New York [Juniper Ave.], 233 NY 387; Matter

      of DWS N. Y. Holdings v County of Dutchess, 110 AD2d 837; Matter of Cornell Univ. v Village of Cayuga Hgts., 13 AD2d 1; Matter of Kermani v Town Bd., 40 NY2d 854; New York Cardiac Ctr. v Kondzielaski, 84 AD2d 746; Nollan v California Coastal Commn., 483 US 825; Matter of Nolan v Bureau of Assessors, 31 NY2d 90.) III. The methodology does not violate equal protection. (Shapiro v City of New York, 32 NY2d 96; Matter of Catapano Co. v New York City Fin. Admin., 40 NY2d 1074; Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529; Matter of Gormeley v New York Daily News, 30 AD2d 16, 24 NY2d 867; Atkins v Hertz Drivurself Stas., 261 NY 352; People ex rel. Delaware, Lackawana & W. R. R. Co. v Wildy, 262 NY 109; Matter of City of New York [Juniper Ave.], 233 NY 387; Baglivi v Town of Highlands, 147 AD2d 432.) IV. The court below correctly found the actions of the Board to be rational, reasonable and based on substantial evidence. (Pell v Board of Educ., 34 NY2d 222; Matter of Huntington TV Cable Corp. v State of New York Commn. on Cable Tel., 94 AD2d 816, 61 NY2d 926; Matter of Bockis v Kayser, 112 AD2d 222; Matter of Scarsdale Chateaux RTN v Steyer, 53 AD2d 672; Matter of Pokoik v Incorporated Vil. of Ocean Beach, 143 AD2d 1021, 73 NY2d 706; Matter of Nolan v Bureau of Assessors, 31 NY2d 90; Matter of Gagnon v Board of Educ., 119 AD2d 674; Matter of Levine v New York State Liq. Auth., 23 NY2d 863; Matter of Bork v Newman, 122 AD2d 329.) V. Appellant Dormitory Authority is not exempt from local special benefit assessments. (New York Cardiac Ctr. v Kondzielaski, 84 AD2d 746; Union Free School Dist. No. 11 v Steuben County, 178 Misc 415, 264 App Div 945; Pajak v Pajak, 56 NY2d 394; Boraas v Village of Belle Terre, 367 F Supp 136, 476 F2d 806, 416 US 1; Town of Cheektowaga v Niagara Frontier Transp. Auth., 82 AD2d 175; Matter of Metropolitan Transp. Auth. v Imholz, 121 AD2d 724.) VI. Special assessments were properly imposed by the District. (Mitchell v Town of Shelter Is., 3 Misc 2d 127, 2 AD2d 712.)
   OPINION OF THE COURT

Chief Judge Kaye.

Public Authorities Law § 1685 provides that, because "the creation of the [dormitory] authority * * * is in all respects for the benefit of the people * * * the state of New York covenants with the holders of the bonds that the [dormitory] authority shall be required to pay no taxes or assessments upon any of the property acquired by it or under its jurisdiction, control, possession or supervision.” The primary issue before us is whether the term "assessment” as used in this provision includes a "special assessment” of the kind issued against appellant Dormitory Authority by respondent Hyde Park Fire and Water District.

The Appellate Division held both that the Dormitory Authority is not exempt from the special benefit assessment under Public Authorities Law § 1685 and that the assessment methodology was valid and proper. Although we agree with the Appellate Division concerning the propriety of the methodology used to assess charges against Hyde Park property owners generally, we conclude that the Dormitory Authority is exempt under Public Authorities Law § 1685, and therefore modify the Appellate Division order.

In 1986, after being directed by the New York State Department of Environmental Conservation to halt discharges of certain compounds from its aging water plant, respondent Hyde Park Water District, an independent entity created by the Legislature before the Civil War, decided to construct a new drinking water treatment facility using the Hudson River as its source. The District’s Board of Trustees considered three financing alternatives for the design and construction of the new facility: ad valorem assessment, benefit assessment and water rate charges. After extensive deliberation and debate, the Board accepted the District Engineer’s recommendation for the benefit assessment methodology, specifically authorized under its Charter, as the most equitable way to apportion the improvement among property owners within the District.

Using this methodology, the District determined that the benefit to be conferred on each parcel was to be calculated according to the property’s actual or projected water needs. All existing residential structures in the District were assigned one to three benefit assessment units based on the District average of 164 gallons consumed, 218 gallons required per day. Larger commercial structures were assigned benefit assessment units based on their actual metered daily consumption. Finally, the District projected the reasonably likely development and resulting water needs over time of undeveloped parcels based on zoning ordinances and approvals as well as factors such as parcel shape, frontage and topography. As part of the SEQRA review process, respondent Board prepared and circulated Environmental Impact Statements describing the project and the benefit assessment methodology. After numerous public hearings, the District taxpayers approved a resolution authorizing issuance of up to $20 million in bonds to finance the project. As a result, each year during the period 1988-1990, the District sent special benefit assessment bills to Hyde Park property owners.

After receiving its first assessment in 1990, appellant Dormitory Authority, a public benefit corporation that owns and manages student dormitories throughout the State — including the facility on the campus of the Culinary Institute of America at issue here — filed a grievance challenging its assessment. After a hearing, the District adhered to its initial assessment.

The Dormitory Authority along with six other Hyde Park landowners then commenced CPLR article 78 and RPTL article 7 proceedings challenging the benefit assessment methodology and the resulting assessments as unlawful, irrational and unconstitutional. The Board of Trustees, in turn, sought summary judgment dismissing the petitions on the grounds that the claims were time barred, barred by res judicata, not legally cognizable and unsupported by the record. In the meantime, the District issued its 1991 benefit assessment roll, which was added to the case. After consolidation of all challenges, Supreme Court granted the Board’s motion to dismiss the proceedings and the Appellate Division affirmed (206 AD2d 483).

We now hold that the Appellate Division erred in concluding that the Dormitory Authority was not entitled to an exemption under Public Authorities Law § 1685.

Public Authorities Law § 1685 was enacted in 1944 (L 1944, ch 524) and last amended in 1949 (L 1949, ch 786). The predecessor to current RPTL 102 (15), where the terms "special assessment” and "assessment” were first defined as correspending to separate and distinct concepts, was passed nearly a decade later (L 1958, ch 959 [§ 102]). The Legislature that enacted Public Authorities Law § 1685 therefore plainly did not use the terms "assessment” and "special assessment” as they were subsequently defined in the RPTL. We cannot assume, as respondent does, that a different Legislature, enacting an entirely different section of the law, had the RPTL definitions in mind when passing Public Authorities Law § 1685.

In fact, the statutory language makes it clear that Public Authorities Law § 1685 and RPTL 102 (2) use the term "assessment” differently, with Public Authorities Law § 1685 referring to a form of taxation from which the Authority is to be excused, while RPTL 102 (2) refers instead to an estimate of property value upon which a tax is ultimately based (see, RPTL 102 [2] [defining "assessment” as determination made by assessors of valuation of real property]). If the word "assessment” in Public Authorities Law § 1685 is to be interpreted in accordance with the definition provided in RPTL 102 (2) to refer to an estimate of property value, the provisions of Public Authorities Law § 1685 are rendered legally meaningless. The Legislature did not exempt the Dormitory Authority from an estimate of property value. Using the current RPTL definition of "assessment” to limit Public Authorities Law § 1685 would thus contravene principles of sound statutory construction.

The court in Town of Cheektowaga v Niagara Frontier Transp. Auth. (82 AD2d 175, 179-181), construing an analogous provision in Public Authorities Law § 1299-0, perceived that the Legislature instead used the word "assessment” in its other, more "generic” sense as "a tax, fine or other special payment” which would include a "special assessment” of the kind at issue here (Town of Cheektowaga, at 179-181). Black’s Law Dictionary, for example, explains that the word "assessment” is "popularly used as a synonym for taxation in general * * * but * * * only taxation for a special purpose or local improvement, local taxation, as distinguished from general taxation” (Black’s Law Dictionary 150 [4th ed 1968]). Under "special assessment,” Black’s Law Dictionary simply refers the reader to the above-cited definition for "assessment” (id,., at 1569). (See also, Cummins v U. S. Life Tit. Ins. Co., 40 NY2d 639 [using terms "assessment” and "special assessment” interchangeably]; Matter of Nolan v Bureau of Assessors, 31 NY2d 90 [same]; 3 Powell and Rohan, Real Property 495 [1] [1994] [same]).

The fact that the Legislature amended Public Authorities Law § 1299-0 in 1982 after the Appellate Division’s ruling in Cheektowaga to specify that special benefit assessments were no longer exempted under the provision applicable to the Niagara Frontier Transportation Authority (L 1982, ch 836) is not sufficient to overcome the Legislature’s intent with respect to the Dormitory Authority and Public Authorities Law § 1685. When the Legislature has intended not to exempt a particular public authority from special benefit assessments, it has said so explicitly (see, e.g., Public Authorities Law §§ 1299-qq, 1316, 1341 [exempting other public authorities from payment of all taxes "except special benefit assessments”]).

If, as respondent argues, it is more desirable that local municipalities such as Hyde Park not be swept into a wider net of exemption for local improvements that benefit the public authorities within their borders, such a policy determination must be made by the Legislature, not the Court. Public Authorities Law § 1685 granted such an exemption and we cannot take it away by judicial interpretation.

Finally, even assuming that principles of res judicata/ collateral estoppel do not bar the challenges asserted by the other Hyde Park property owners, we agree with the Appellate Division that the special assessments imposed, fully authorized by the District’s voters, were valid and constitutional. The record reveals that a detailed study was performed by the Board of Trustees before implementation of the assessment methodology and, in the absence of a showing to the contrary, the assessment is presumed valid. In any event, these taxpayers failed to offer sufficient proof that the amounts of the special assessments levied against them were substantially in excess of the undisputed benefits they will ultimately receive as a result of the new water treatment plant.

Accordingly, the order of the Appellate Division should be modified in accordance with this opinion, without costs, and, as so modified, affirmed.

Judges Simons, Titone, Bellacos a, Smith and Ciparick concur; Judge Levine taking no part.

Order modified, etc.

      . After the initial 1988 assessment, a constitutional challenge to the enabling legislation was brought by various property owners and ultimately rejected (see, Van Wagner v Hyde Park Fire & Water Dist., 158 AD2d 518, appeal dismissed 76 NY2d 771). A second lawsuit challenging the methodology used in connection with the 1989 benefit assessments was dismissed on the ground that the methodology employed was rationally based and impartially applied (see, Matter of Hy-Sid, Inc. v Board of Trustees, Sup Ct, Dutchess County, Sept. 10, 1989, index No. 89-553). No appeal was taken from that decision.

      . These proceedings thus represented yet a third attempt by Hyde Park property owners to challenge the special benefit assessments.

      . RPTL 102 (2), for example, currently defines the term "assessment” as "a determination made by assessors of (1) the valuation of real property, including the valuation of exempt real property and (2) whether or not real property is subject to taxation or special ad valorem levies.” "Special assessment,” in turn, is defined in RPTL 102 (15) as "a charge imposed upon benefited real property in proportion to the benefit received by such property to defray the cost, including operation and maintenance, of a special district improvement or service.”


text:
    [653 NE2d 1162, 629 NYS2d 992]
    The People of the State of New York, Respondent, v Stanley G. Cratsley, Appellant.
    Argued June 6, 1995;
    decided July 5, 1995

      POINTS OF COUNSEL

      Michael J. Hutter, Albany, and Allen Redlich for appellant.
    I. Receipt of a purported 1979 psychologist’s report into evidence was prejudicial error. (People v Romero, 78 NY2d 355; People v Kennedy, 68 NY2d 569; People v Sugden, 35 NY2d 453; Hambsch v New York City Tr. Auth., 63 NY2d 723; Fahy v Connecticut, 375 US 85; People v Steiner, 30 NY2d 762; Idaho v Wright, 497 US 805; Ohio v Roberts, 448 US 56; People v Manganaro, 218 NY 9; Matter of Leon RR, 48 NY2d 122.) II. Complainant’s vocational counselor was not qualified to be an expert witness. (Penry v Lynaugh, 492 US 302; Cleburne v Cleburne Living Ctr., 473 US 432; Andrews v Collins, 21 F3d 612; Becker v Queens B’nai B’rith Hous. Dev.

      Fund Co., 798 F2d 52; Fairchild v Lockhart, 744 F Supp 1429, 900 F2d 1292; Lowery v Sullivan, 979 F2d 835; People v Rice, 159 NY 400). III. The People’s failure to present testimony of a qualified health care professional mandates reversal of the judgment of conviction for failure of proof. (People v Easley, 42 NY2d 50; Dyer v MacDougall, 201 F2d 265; People v Cintron, 75 NY2d 249.)

      James T. Hayden, District Attorney of Chemung County, Elmira, for respondent.
    I. The basis for defendant’s harmless error argument has not been preserved for review by this Court. (People v Thomas, 68 NY2d 194; People v Salko, 47 NY2d 230; People v Nisonoff, 293 NY 597.) II. The court below properly applied the harmless error rule. (Wheeler v United States, 159 US 523; People v Easley, 42 NY2d 50.) III. The trial court properly received into evidence a document from the victim’s case file. (People v Kennedy, 68 NY2d 569; Millen Indus. v American Mut. Liab. Ins. Co., 37 AD2d 817; Westhampton Adult Home v National Union Fire Ins. Co., 105 AD2d 627.) IV. The trial court did not commit error in receiving Linda Kent’s testimony. (Meiselman v Crown Hgts. Hosp., 285 NY 389; People v Whitehead, 142 AD2d 745.) V. The evidence at trial was legally sufficient to demonstrate the complainant’s incapacity to consent and therefore defendant’s guilt beyond a reasonable doubt. (People v Clark, 94 AD2d 846; Matter of Lee v County Ct., 27 NY2d 432; People v Dixon, 66 AD2d 971; People v Carter, 37 NY2d 234; Boyd v Boyd, 252 NY 422; People v McDonald, 53 AD2d 980; People v Lewis, 165 AD2d 901.)
   OPINION OF THE COURT

Chief Judge Kaye.

Defendant was charged with rape in the third degree (Penal Law § 130.25 [1]) after he admitted to having sexual intercourse with a 33-year-old woman whom he knew to have mental retardation. The sole issue at trial was whether she was legally incapable of consent. While this remains the central question on appeal, an additional issue before us concerns the business records rule.

Complainant, Sherry K., was an employee of the Steuben Association of Retarded Citizens (ARC), a sheltered workshop that provided opportunity and support for adults who are mentally retarded. One Monday morning in July 1991, she told her counselors — in accordance with her instruction on responding to sexual abuse — that she and defendant had engaged in sexual intercourse the previous weekend. In her own words, defendant had asked her to pull down her pants and, although she told him "don’t do no more,” he "put his go potty thing” inside her. Upon questioning, defendant, who was a cousin of Sherry K.’s stepfather, admitted the encounter, but insisted it was at her instigation and with her consent.

According to testimony from her mother and stepfather, complainant had suffered brain damage at birth. She lived in an apartment attached to her parents’ home, but was unable to cook for herself, handle money, perform anything other than repetitive tasks or cope with variation from her daily routine. She had a steady boyfriend with whom she went out to eat and visit acquaintances in the supervised community where he lived.

Found not capable of comprehending the nature of the oath, Sherry K. gave unsworn testimony. As her testimony revealed, she could not spell her last name or correctly state her age. While she knew the purpose of the birth control pills prescribed for her was to prevent pregnancy, she did not know what pregnancy was, or "where babies come from,” and did not know about venereal disease.

Linda Kent, complainant’s counselor at ARC, had advanced training in vocational habilitation of adults with mental retardation and worked intensively with the ARC employees to assist them in succeeding at employment. In complainant’s case, Kent reviewed her programs twice yearly, and helped her formulate developmental goals. Kent assisted her in managing her money, and counselled her about personal problems, seeing her at least twice a day at the center. Over defense counsel’s objection, the prosecutor elicited testimony from Kent establishing that a clinical report contained in Sherry K.’s ARC file showed her IQ to be 50. That result, according to Kent, placed her on "the high end of the moderately retarded” range, the type of person admitted to ARC. Kent’s work was limited to persons with IQs above 50, persons who are "trainable,” and she was very familiar with this range of functioning.

Within the ambit of the training given to Sherry K. through ARC was education in recognizing and preventing sexual abuse. She had been told she had the right to say "no” to any conduct that made her uncomfortable, whether at home, in the community or in the workshop. She had been instructed to report immediately any touching of her body. Over defense counsel’s objection that Kent lacked expertise in determining capacity to consent to sexual intercourse, Kent was allowed to testify that complainant did not appreciate the connection between intercourse and pregnancy. Kent had asked Sherry K., on two occasions, whether she understood this connection, and both times she made clear that she did not.

The court delivered a charge based on Criminal Jury Instructions (2 CJI[NY] PL 130.25), directing that the complainant should be found unable to consent to sexual intercourse if she was "so mentally defective as to be incapable of appraising the nature of her conduct,” and setting forth factors relevant to that determination. Defendant was convicted of rape in the third degree and sentenced to an indeterminate term of imprisonment.

On appeal, defendant contends that Kent was wrongly allowed to give "expert testimony” about the complainant’s mental capacity, and that in the absence of expert testimony on that question, the evidence was insufficient to establish defendant’s guilt. Defendant also argues that receipt into evidence of the psychologist’s report — which the Appellate Division found to be error, but harmless — required reversal. We now affirm.

I

"Mental retardation” is not a disease, disorder or disability, but a less-than-satisfactory administrative term used to identify the condition of a broad spectrum of people whose common trait is inadequate cognitive ability to meet the demands of society (Hayman, Presumptions of Justice: Law, Politics, and the Mentally Retarded Parent, 103 Harv L Rev 1202, 1213, 1248, n 249). Such an impairment may arise from any number of causes, including birth defect, head injury, disease and environmental factors, conditions leading to no common symptomatology in physiology, psychology, intellect or affect (id., at 1214). Mental retardation is not necessarily a static condition, for experience has shown that with effective training and support, individuals are able to lead increasingly "normal” lives (Christian, Normalization as a Goal: The Americans with Disabilities Act and Individuals with Mental Retardation, 73 Tex L Rev 409, 413).

Our jurisprudence recognizes certain limitations on the ability of a legally incapacitated person to consent to participate in sexual relations. That limitation is an exercise of the State’s parens patriae interest, invoked only where the individual is deemed unable to make a competent decision concerning a fundamental right (see, Rivers v Katz, 67 NY2d 485, 496).

Under New York law, it is an element of every sex offense that the sexual act was committed without the consent of the victim (Penal Law § 130.05 [1]). Where a person is legally incapacitated, the law does not recognize any claim that the person "consented” to sex and criminalizes sexual intercourse with that person (Penal Law § 130.05 [2] [b]).

The burden the People must meet to establish legal incapacity is a high one. Under the statutory scheme, the People must prove case-by-case that a victim’s functioning is so impaired as to be "mentally defective” (Penal Law § 130.05 [2] [b]). By that standard, the victim must suffer "from a mental disease or defect which renders him incapable of appraising the nature of his conduct” (Penal Law § 130.00 [5]). The law does not presume that a person with mental retardation is unable to consent to sexual intercourse (Penal Law § 130.25 [1]), and proof of incapacity must come from facts other than mental retardation alone.

This Court considered application of these standards in People v Easley (42 NY2d 50, 54-55), and declined to "adopt the fiction that all persons are mentally or judgmentally equal.” We took care to note that (supra, at 54-55):

"[a]s do all others, the mentally aberrant differ from one another in greater or lesser degree. Even mental retardation does not mean that an individual is incapable of consenting as a matter of law. The requisite degree of intelligence necessary to give consent may be found to exist in a person of very limited intellect (see 1 Wharton, Criminal Law and Procedure, § 310; Hacker v State, 73 Okla Cr 119). Crucial to a determination may be how such a person actually functions in society (Lind-man, Mentally Disabled and the Law [American Bar Foundation, rev ed], p 226).”

In Easley, we discussed what it meant to be incapable of appraising the nature of one’s own sexual conduct (see, 42 NY2d, at 55-58). Understanding the "nature” of one’s sexual conduct implicates a range of human responses, only a part of which is intellectual. We noted that care must be taken not to restrict the freedom of persons with mental retardation who are capable of knowing consent to a sexual relationship by confusing deliberate failure to adhere to a particular set of values with lack of understanding that values exist. Only the latter — a lack of understanding — is an appropriate consideration in assessing legal capacity.

Defendant does not quarrel with this legal standard, but urges that the People cannot meet their burden under Easley without presenting some admissible expert testimony as to a complainant’s capacity to consent, testimony that he argues is absent in this case.

As we noted in Rivers v Katz, however, determination of capacity is a judicial, not a medical, function (67 NY2d, at 48-49). The question whether a person possesses sufficient resources — intellectual, emotional, social, psychological — to determine whether to participate in sexual contact with another is an assessment within the ken of the average juror, who likely has made the same determination at some point. We concluded in Easley that this assessment is best based on evidence concerning the victim’s ability to function in society (42 NY2d, at 55). People who observe the complainant daily— family members, teachers, employers — are often most familiar with his or her capacity to cope with challenge and can illuminate for the jury the complainant’s ability to understand and cope with a sexual encounter.

Here, just such evidence was presented through the testimony of Sherry K. herself, as well as that of her parents and counselor, and it was sufficient for the jury to conclude that at the time of this incident, she lacked capacity to appreciate the nature of her participation in sexual conduct with defendant. There was no suggestion that her encounter with defendant arose out of an emotional bond. While that alone is surely not dispositive, it is relevant to whether the encounter with defendant was primarily exploitative of her, the type of harm the law most seeks to guard against by this provision. Complainant displayed no understanding that defendant was married, or that engaging in sexual conduct with him might be considered inappropriate.

While Sherry K. promptly reported the incident to her counselors, her testimony was that she did so not because of awareness that a wrong had occurred, but because she had been instructed to inform the ARC staff if she were intimately touched by another and did not want to get in trouble with the staff by failing to heed its instructions.

The testimony of Linda Kent, contrary to defendant’s contention, was not introduced as expert testimony on the question whether complainant was capable of comprehending the nature of her sexual conduct. Rather, Kent served as a fact witness, describing her own experience with Sherry K.

Taken as a whole the People’s evidence sufficiently established that complainant’s cognitive, social, psychological and emotional limitations — known to defendant — were severe enough to prevent her from understanding at the time of the incident the nature of her own conduct in engaging in sexual intercourse with defendant. Nor did the evidence suggest she comprehended what defendant was doing when she asked him to stop touching her. Because she was not able to consent to his actions, the evidence was sufficient to support defendant’s conviction of rape in the third degree.

II

Defendant also contends that the IQ test report, prepared by psychologist Frederick Rohrs in 1979 at the time of Sherry K.’s admission into ARC, failed to meet the evidentiary standards of a business record under CPLR 4518. The report was admitted for the truth of its contents — that the complainant had an IQ of 50 — and was therefore hearsay. In order to admit the record without the testimony of Rohrs, the foundation requirements of CPLR 4518 (a), made applicable to criminal proceedings by CPL 60.10 (People v Kennedy, 68 NY2d 569, 578), must be satisfied.

The Appellate Division held that there was "no evidence concerning the circumstances” under which the report was made. We conclude, however, that in the particular circumstances presented, the testimony of Linda Kent established the requisite foundation for admission of this evidence.

The three foundation requirements of CPLR 4518 (a) are outlined in Kennedy (68 NY2d, at 579-580): first, the record must be made in the regular course of business — reflecting a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business. Second, it must be the regular course of business to make the record — in other words, the record was made pursuant to established procedures for the routine, habitual, systematic making of such a record. Finally, the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made.

There was no dispute at trial that complainant had some degree of mental retardation. The only question was whether her impairment prevented her from consenting to participating in sexual conduct with defendant. Kent testified not as an expert witness on that question but as a fact witness, familiar with Sherry K.’s daily routine and her response to new situations. The subject of the report arose while Kent was describing the extent of her familiarity with complainant and her limitations. That testimony also established that she was well familiar with the circumstances under which Rohrs’ report was prepared.

Kent testified that in order to carry out her evaluation and counseling of Sherry K., she had to know her medical and psychological background and therefore maintained all relevant records, including medical, psychological and social histories. ARC accepted only clients determined to have mild or moderate retardation, with IQs of lower than 75.

Through further questioning, the People established that Kent recognized Rohrs’ report as an initial evaluation prepared in accordance with ARC’S requirements. No one was accepted into the program without such a report. Kent worked with these reports as part of her regular course of business at ARC, and they were relied on both in making determinations as to suitability of candidates for admission and in formulating their program once at ARC.

The face of the report stated that the evaluation — a "Comprehensive Psychological Evaluation for Diagnosed Mental Retardates” — had taken place at the request of the New York State Office of Vocational Rehabilitation (OVR), and concluded with a recommendation that Sherry K. be placed at Steuben County ARC. By statute, OVR contracts with sheltered workshops such as ARC to provide services to clients, and the law requires periodic review to determine the ongoing suitability of the program for the individual (Education Law § 1004-a [2], [5]). Rohrs’ evaluation was therefore prepared on behalf of both OVR and Steuben County ARC (cf., Matter of Leon RR, 48 NY2d 117, 123).

Because the report was prepared for ARC, in conformity with its procedures, the fact that Rohrs was not himself an ARC employee does not, under these facts, defeat admission. It is true that as a rule, "the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” (Standard Textile Co. v National Equip. Rental, 80 AD2d 911; see also, Yachnin, The Business Record Rule— CPLR 4518 (a) — Worth Learning and Never Forgetting, NYLJ, May 30, 1995, at 12, col 5 [objection for lack of foundation warranted when "the writing is a business record but received from another business entity”]). The reason for this rule is that "[s]uch papers simply are not made in the regular course of business of the recipient, who is in no position to provide the necessary foundation testimony as to the regularity and timeliness of their preparation or the source of information contained in the records” (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 4518:1, at 105). Nor, generally, would the recipient be aware whether the information was imparted by one under a "business duty” to report to the entrant (see, Johnson v Lutz, 253 NY 124).

Those concerns are not present here, however, because Rohrs was acting on behalf of ARC and in accordance with its requirements when he prepared the report. While not an ARC employee, Rohrs was also not a complete outsider. And although Kent could not relate Rohrs’ specific recordmaking practices, she was able to state that the report conformed with the statutory and regulatory requirements with which she was familiar. Coupled with her testimony that no client was accepted into the ARC program without such a report, and that the reports were routinely relied on by ARC in making determinations regarding its clients, the evidence was sufficient to establish that Rohrs’ report, prepared at the time the examination was conducted, was made in the regular course of business and that it was the regular course of business to prepare such reports (Kelly v Wasserman, 5 NY2d 425, 429). These circumstances — the indicia of reliability characteristic of a business record (Kennedy, 68 NY2d, at 577-579) — supported the trial court’s conclusion that the report was a business record under CPLR 4518 (a), and the evidence was thus properly received.

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

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

Order affirmed.

      . Pursuant to Penal Law § 130.25, a person is guilty of rape in the third degree when:
      "1. He or she engages in sexual intercourse with another person to whom the actor is not married who is incapable of consent by reason of some factor other than being less than seventeen years old; or
      "2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person to whom the actor is not married less than seventeen years old.”

      . Where incapacity arises solely because the victim is "mentally defective, mentally incapacitated or physically helpless,” it is an affirmative defense that the defendant, at the time he engaged in the conduct, was unaware of the facts or conditions responsible for such incapacity to consent (Penal Law § 130.10). Defendant did not assert the affirmative defense.

      . Penal Law § 130.25 (2), in contrast, creates an irrebuttable presumption that a child less than 17 years of age cannot consent to sexual intercourse with an adult of 21 years or older.

      . This is not to say that expert testimony would be inadmissible (see, e.g., People v Parks, 41 NY2d 36, 47). Assuming the requisite foundation (People v Bennett, 79 NY2d 464, 472-473), such testimony may be helpful, for example, where the victim’s behavior contradicts an assertion of incapacity (People v Taylor, 75 NY2d 277, 292-293).


author: Simons, J. Bellacosa, J.

text:
    [653 NE2d 1168, 629 NYS2d 998]
    The People of the State of New York, Respondent, v Zenel Seit, Appellant.
    Argued June 8, 1995;
    decided July 6, 1995

      POINTS OF COUNSEL

      Steven R. Kartagener, New York City, and David J. Mudd for appellant.
    I. The trial court committed reversible error when it excluded from appellant’s second trial an essential piece of defense evidence supporting appellant’s justification defense — a 911 call made by appellant’s son to the police before the shooting, to the effect that a man with "a gun” was causing an emergency in front of the Seit home — which had been admitted at the first trial; the error was unquestionably prejudicial to appellant in light of the trial prosecutor’s misrepresentation about what had occurred at the first trial, his questions on cross-examination which implied that the son had never made the call, and his summation comments which directly conflicted with the tape-recorded evidence that had been excluded. (People v Minor, 69 NY2d 779; People v Henderson, 162 AD2d 1038; People v Rodwell, 100 AD2d 772; Matter of Bergstein v Board of Educ., 34 NY2d 318; People v Felder, 37 NY2d 779; People v Brown, 80 NY2d 729; People v McClean, 69 NY2d 426; People v Melendez, 55 NY2d 445; People v Hall, 173 AD2d 729; People v Johnson, 162 AD2d 471.) II. The trial court’s instructions to the jury did not correctly explain the concept of "excessive force” insofar as it applied to appellant’s pivotal defense of justification. (People v Patterson, 21 AD2d 356; People v Perry, 176 AD2d 901.) III. In the event that this Court reverses the order of the Court below affirming appellant’s homicide and weapon possession convictions resulting from his second trial, the Court should vacate appellant’s 2/j-to-7-year sentence for his third degree weapon possession conviction resulting from his first trial and remand the case for resentencing. (People v Cohen, 50 NY2d 908; People v Stuart, 123 AD2d 46; People v Camilloni, 92 AD2d 745.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Gary Fidel and Steven J. Chananie of counsel), for respondent.
    I. The trial court properly refused to allow defendant’s son, Uli, to testify to the contents of his telephone call to the 911 operator. (People v Narayan, 54 NY2d 106; People v Martin, 50 NY2d 1029; People v Reynoso, 73 NY2d 816; People v Minor, 69 NY2d 779; People v Feldman, 299 NY 153; People v Carter, 166 AD2d 660, 77 NY2d 837; People v Davis, 44 NY2d 269; People v Nieves, 67 NY2d 125; People v Malizia, 62 NY2d 755, 469 US 932; People v Crimmins, 36 NY2d 230.) II. The court’s charge on excessive force was proper in all respects. In any case, any error was harmless (People v Contes, 60 NY2d 620; People v Whalen, 59 NY2d 273.)

      . Defendant argues in this Court that he was entitled to introduce the 911 tape on the direct examination of defendant’s son to establish, circumstantially, defendant’s state of mind. That argument was not raised below. In the trial court he sought to introduce the tape to show the son’s state of mind and the court ruled, correctly, the son’s perception of the circumstances was irrelevant.

   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of murder in the second degree for killing Thomas Gonzales. Gonzales, a tenant of defendant, went to defendant’s apartment to get a receipt for past rent paid so that he could show it to the Marshal and thereby avoid eviction. Defendant refused to give Gonzales the receipt at that time and an argument ensued which resulted in defendant shooting him.

The altercation took place in front of the apartment house in which defendant lived. According to the testimony of decedent’s nephew and his friend and two neighborhood youths who witnessed the incident, defendant, while standing on the stoop, shot decedent in the face with a .25 calibre pistol while decedent stood below him on the sidewalk. Decedent fell forward to the ground and defendant then walked down the steps and, while decedent was on the ground, shot him in the back three times in quick succession. Powder burns indicated that two of the bullets in decedent’s back were fired from a distance of 1 to 2 feet away.

Originally, defendant told the police that Gonzales had a gun and that he was accidentally shot as defendant tried to wrestle it away from him. At the trial, however, defendant admitted that story was false and he, his son, his daughter-in-law and his daughter testified that decedent was killed by defendant’s gun, but that defendant acted in self-defense.

The only issue preserved for our review on this appeal is whether the court erred in refusing to permit defense counsel to introduce evidence of the substance of the son’s 911 call to the police under the recent fabrication exception to the hearsay rule. We conclude that the ruling was error but that the error was harmless.

Generally, the testimony of a witness may not be corroborated or bolstered by evidence of prior consistent statements. One reason, as we said in People v McClean (69 NY2d 426, 428), is that untrustworthy statements do not become more trustworthy merely by repetition. The rule also rests upon the belief that sworn testimony is preferable to extrajudicial statements and that litigation should not devolve into a contest to see who can obtain the latest version of a witness’ story (see, People v McDaniel, 81 NY2d 10, 16). There is an exception, however, when a witness’ testimony is attacked on cross-examination, directly or by inference, as a recent fabrication (see, People v Davis, 44 NY2d 269, 277). Of course, not all inconsistencies developed on cross-examination imply that a witness’ testimony is fabricated. Questions designed to demonstrate that the testimony is the product of confusion or mistake do not charge fabrication (see, People v Singer, 300 NY 120, 124). The implication that the testimony was recently fabricated arises only if it appears that the cross-examiner believes and wants the jury to believe that the witness is testifying falsely to "meet the exigencies of the case” (People v Katz, 209 NY 311, 340; see also, People v Singer, supra). When the witness’ testimony has been attacked for that purpose, the witness may be permitted to show that he or she made similar statements at some earlier time when free from the alleged bias. The prior consistent statements antedating the motive to fabricate are not introduced to prove or disprove the facts in issue, but to rehabilitate the credibility of the witness (see, People v McClean, supra; People v Katz, 209 NY, at 341, supra).

Here, the question is whether the prosecutor’s cross-examination of defendant’s son, Uli, implied that Uli’s testimony about decedent’s possession of the gun was recently fabricated. Uli testified that on at least three occasions during the argument decedent reached behind his back for something at his waist. On its face, the prosecutor’s examination appeared to challenge Uli’s assertion that he and his father reasonably believed the decedent intended to use unlawful physical force against them (see, People v Goetz, 68 NY2d 96). The line of questioning, however, tended to establish that Uli did not believe that the decedent possessed a gun at the time and that his testimony at trial was a fabrication. There was no suggestion that this testimony was inaccurate because, for example, Uli was unable to see clearly or that he was confused by the excitement of the moment. Thus, whatever the primary purpose of the question, the cross-examination created the inference that Uli’s testimony was fabricated sometime after the incident to establish defendant’s justification defense. A reasonable application of the recent fabrication exception to the hearsay rule permitted rehabilitation of Uli’s credibility under these circumstances and evidence of his 911 conversation should have been admitted.

The error was harmless, however, because other witnesses testified that Uli had called 911 during defendant’s confrontation with the decedent and the substance of Uli’s call was established by the testimony of his wife, who testified that she overheard Uli reporting that decedent had a gun. Thus, the record contains evidence of Uli’s 911 conversation dispelling the implication that his testimony was recently fabricated. Moreover, insofar as Uli’s belief that the decedent possessed a gun was offered to establish the defense of justification, the other members of defendant’s family testified that they, too, believed that the decedent possessed a gun and their evidence was more than sufficient to establish the claim, if the jury chose to accept it, even without Uli’s testimony.

Even if defendant is credited with having established these facts, however, the uncontroverted evidence showed that at some time after Uli called 911, decedent walked to his van, parked some 40 feet away from the stoop, took off his jacket and left it there. At that point, defendant and his family had the opportunity to leave the stoop and retreat into their apartments. Defendant’s actions in failing to do so and in waiting for decedent to return to the area of the stoop to renew the argument when he had the opportunity to safely retreat, defeat any claim of justification (see, Penal Law § 35.15 [2]; see also, People v Brown, 187 AD2d 312; People v Childs, 21 AD2d 809, 810). The dissent fails to address this or the uncontroverted evidence that defendant shot the decedent in the back three times after decedent returned to the stoop from his van. Given those circumstances, however, the majority conclude there is no significant probability that the jury would have acquitted defendant if evidence of the 911 conversation had been admitted to rehabilitate Uli’s credibility on redirect (see, People v Crimmins, 36 NY2d 230, 242).

Finally, although defendant has made no formal claim that he was denied a fair trial, his counsel has made charges of prosecutorial misconduct which were accepted by the dissenter at the Appellate Division and are accepted by the dissenter in this Court. His arguments warrant some comment here. The thrust of the different dissenters’ position is that the prosecutor knowingly misled the trial court by stating that the 911 tape had not been introduced in the first trial of this indictment, which resulted in a hung jury, when he knew it had been admitted, and thereafter took advantage of the court’s ruling and the absence of the tape when examining the witnesses and during summation. We are not able to conclude from this record that that interpretation of the record is warranted.

Counsel points particularly to a statement made by the prosecutor when defense counsel moved to introduce the tape to rehabilitate Uli following the prosecutor’s cross-examinatian. The court asked both counsel if the tape had been admitted at the first trial. The prosecutor answered, "I don’t think so”, adding "but [the lawyer who represented defendant at the first trial] is a very clever lawyer.” It should be noted that the statement was made after the court had ruled the tape inadmissible and that it was made to the same Judge who presided at the earlier trial. The prosecutor apparently had no clearer recollection of the evidence at the first trial than the Judge did. Moreover, the prosecutor first raised a question about the tape, prior to jury selection. While objecting to the possibility of defendant offering the tape, he stated that he was uncertain whether the evidence regarding the tape had been received at the first trial and recalled only a dispute with prior defense counsel about his failure to submit the tape to the Grand Jury. Apparently no one was sufficiently interested at that time to check the record of the earlier trial.

The matter came up again when the tape was offered, but not received, during Uli’s direct testimony (see, n 1, ante). Following the cross-examination, defense counsel again offered the tape, stating it had been received at the first trial. The court denied the offer, noting that the contents of the tape had been established through another witness. After it had ruled, the court continued the discussion and it was then that the statements of the prosecutor, now objected to, were made. We find nothing in this record to establish that the prosecutor intended to mislead the court or take advantage of its ruling.

During summation, defense counsel argued that decedent had a gun during the altercation although no one had ever seen a gun in decedent’s possession and no gun had ever been found. Counsel proposed several explanations, none supported by the evidence, to explain the failure of the police to find the weapon the witnesses claimed decedent possessed. In response, the prosecutor argued that no one had seen a gun in decedent’s hands and urged that defendant did not really believe decedent was armed. His comments, fair response to defense counsel’s summation, were not objected to and would not warrant reversal in any case.

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

Bellacosa, J.

(dissenting). I agree that the trial court erred by excluding testimonial evidence from the defendant’s son concerning the 911 emergency call. Because I am unable, however, to agree that the error was harmless, I respectfully dissent and vote to reverse and order a new trial.

Potentially independent verification and corroboration of defendant’s justification defense focused on the 911 telephone call that would have been adduced through the testimony of his son, Uli, who made the call from inside defendant’s house as the fatal altercation was unfolding in front of the house. When the 911 testimony was admitted at defendant’s first trial, the jury was unable to reach a verdict on the murder charge. Thus, a "significant probability” exists that the court’s exclusion of the evidence in the second trial contributed to the second jury convicting defendant (see, People v Crimmins, 36 NY2d 230, 242). This error should not be deemed harmless to rescue this conviction, particularly in light of the prosecutor’s heavy reliance in summation on the absence of a gun found on the victim.

At defendant’s first murder trial, his son, Uli, testified: "I told the [911] operator [that] there [was] an emergency here. I said there is somebody with a gun. * * * There are people here. They got guns and there is going to be a problem. ” At the second trial, the prosecutor objected to Uli’s 911 testimony, asserting falsely that the 911 tape was excluded as hearsay in the first trial. The trial court relied on this misrepresentation in making its concededly erroneous ruling excluding the evidence. Although other members of defendant’s family testified at both trials that they believed the victim possessed a gun, the 911 testimony and tape served as the objective linchpin to buttress defendant’s justification defense. It surely could have provided the basis for a reasonable doubt of guilt and, thus, cannot be deemed harmless.

Moreover, the Court has in a series of recent cases rejected harmless error involving relatively less substantial or pinpointed errors (see, e.g., People v Taylor, 80 NY2d 1, 11 [erroneous admittance of phone message]; People v Johnson, 80 NY2d 798, 799 [erroneous admittance of lineup identification]; People v Vasquez, 76 NY2d 722, 725 [denial of providing missing witness charge]; People v Newball, 76 NY2d 587, 592 [erroneous admission of prior identification testimony]). Where, as here, the defendant is subjected to two trials leading to arguably inconsistent verdicts and a key piece of exculpatory evidence is concededly and erroneously excluded from the trial at issue, it defies logic and practical application of the harmless error doctrine to declare that the combined error of the trial court, directly contributed to by the trial prosecutor, did not have a significant probability of effect on the ultimate verdict. In my view of the record, more than just a "significant probability” existed in this case that the error contributed to the jury’s guilty verdict in the second trial (People v Crimmins, 36 NY2d 230, 242, supra). Thus, there should be a new trial.

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

Order affirmed.

      . The tape indicates that Uli said "somebody” had a gun. It is not entirely clear that "somebody” referred to decedent. Uli testified that he knew his father always carried a gun but claimed at trial it did not "register” in his mind that his father had a gun that evening.

      . The dissent’s contention that the failure to receive testimony about the 911 tape in the second trial caused defendant’s conviction is based on no more than speculation. The record of the first trial is not before us and thus, we have no way of comparing the evidence in that prosecution, which resulted in a hung jury, and the evidence in this trial, which resulted in a verdict of guilty.

      . The accusation rests upon defense counsel’s belief that the tape proved decedent had a gun. Manifestly, the tape proved no such thing (see, n 2, ante). It added nothing to the evidence of others but merely bolstered Uli’s credibility.

      . Defendant’s son had disposed of defendant’s gun before the police arrived and it was never found.