text:
    [ 849 NE2d 954, 816 NYS2d 731]
    The People of the State of New York, Appellant, v Mark Conway, Respondent.
    Argued March 23, 2006;
    decided May 4, 2006

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney, Bronx (Christopher J. Blira-Koessler and Joseph N. Ferdenzi of counsel), for appellant.

      Mischel & Horn, PC., New York City (Richard E. Mischel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the matter remitted to that Court for consideration of the facts (see CPL 470.25 [2] [d]; 470.40 [2] [b]).

On May 26, 1999, 16-year-old Dantae Johnson and a friend were walking on the sidewalk just after midnight in their Bronx neighborhood. Johnson looked over his shoulder and noticed that an unmarked patrol car had pulled into the street. The car was driven by a uniformed New York City police officer, defendant Mark Conway. Two other uniformed officers were passengers, and one of them voiced the suspicion that Johnson was carrying a gun. Although aware that the patrol car’s occupants were trying to get his attention, Johnson ignored them and kept on walking and talking with his friend. After the car stopped and the two officers who were passengers exited and moved toward Johnson and his friend, the boys fled in different directions. These officers chased Johnson’s friend on foot. Defendant remained behind the wheel in pursuit of Johnson.

During the ensuing chase, defendant, passing very close to a parked bus, jumped the patrol car over a curb, positioning his vehicle sideways across the sidewalk so as to cut off the fleeing Johnson; unholstered his gun and held it in his left (dominant) hand; drove on the sidewalk, following Johnson, who had hopped over the patrol car’s hood and continued running; steered the car back onto the street, traveling in the left-hand lane against traffic, which placed the driver’s side nearer Johnson; shifted the gun from his left to his right (nondominant) hand; and reached out of the open driver’s side window with his left hand and grabbed Johnson’s right arm above the elbow while juggling the steering wheel of the moving vehicle and the gun with his right hand. As Johnson tried to pull away and defendant struggled with controlling both Johnson and the car, his gun accidentally discharged inside the vehicle, passing through the driver’s sideview mirror and ultimately striking and severely wounding Johnson. No gun was ever found on Johnson, or near the scene of his arrest. Two nonparty witnesses testified that Johnson was swinging his arms normally as he ran and did not appear to be carrying a gun.

After a bench trial, defendant was convicted of criminally negligent assault in the third degree, a misdemeanor; sentenced to 150 hours of community service; and fined $1,000. The Appellate Division reversed the judgment on the law for legal insufficiency, and dismissed the indictment. One Justice dissented, and granted the People permission to appeal.

A person is guilty of third-degree assault when “[w]ith criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument” (Penal Law § 120.00 [3]). Because defendant obviously caused “physical injury” by using his gun, a “deadly weapon,” only the mens rea of criminal negligence is in dispute in this case. “A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law § 15.05 [4]).

We have explained that “the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and that the carelessness must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” (People v Boutin, 75 NY2d 692, 695-696 [1990], citing People v Haney, 30 NY2d 328, 333, 335 [1972]). Moreover, criminal negligence requires a defendant to have “engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of’ a proscribed result; “ ‘nonperception’ of a risk, even if [the proscribed result occurs], is not enough” (Boutin, 75 NY2d at 696).

The People had to establish beyond a reasonable doubt that defendant acted with the requisite mental state. Further, the trial court’s determination of legal sufficiency should not be disturbed on appeal if it can be said that “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the [acts alleged] beyond a reasonable doubt” (People v Santi, 3 NY3d 234, 246 [2004], quoting Jackson v Virginia, 443 US 307, 319 [1979]; see also CPL 70.10 [1]). “Ultimately, so long as the evidence at trial establishes ‘any valid line of reasoning and permissible inferences [that] could lead a rational person’ to convict, then the conviction survives sufficiency review” (People v Santi, 3 NY3d at 246, quoting People v Williams, 84 NY2d 925, 926 [1994]).

Here, a “valid line of reasoning and permissible inferences” support the trial court’s determination that defendant acted with criminal negligence. Defendant tried to jockey himself into position to apprehend a suspect fleeing on foot from his patrol car by simultaneously manipulating a gun, with his finger on the trigger, and the steering wheel with his right (nondominant) hand while reaching out of the open window of the moving car and grappling with the suspect with his left hand. This “blameworthy conduct creat[ed] or contributed] to a substantial and unjustifiable risk” (Boutin, 75 NY2d at 696) of exactly what happened—the accidental firing of defendant’s weapon. We cannot say that, as a matter of law, the trial court erred in concluding that the risk created by defendant’s conduct constituted a gross deviation from the standard of care expected of a reasonable police officer in such a situation. Finally, to the extent that any of the expert’s testimony was improperly admitted, the error was harmless.

R.S. Smith, J. (dissenting). I would dismiss the appeal, because I believe the Appellate Division’s decision here rests on a factual determination that is beyond our power to review. If I were to reach the merits, I would find the evidence insufficient as a matter of law to sustain defendant’s conviction.

I

Our jurisdiction is limited by the Constitution, with exceptions not relevant here, to “the review of questions of law” (NY Const, art VI, § 3 [a]). Implementing this restriction, CPL 450.90 (2) (a) provides that we have power to review an Appellate Division order of reversal or modification only if we determine that the order “was on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal or modification.” The Appellate Division decided in this case that “the proof does not demonstrate” that defendant was guilty of criminal negligence (21 AD3d 309, 314). It characterized its decision as one “on the law,” but we have held that we are not bound by statements of this kind, and will make our own inquiry as to the true basis for the Appellate Division’s decision (People v Albro, 52 NY2d 619, 623 [1981]).

Defendant, seeking dismissal of the appeal, argues that the Appellate Division’s characterization was wrong and that its decision was really one of fact, based on the weight of the evidence. The People contend that the Appellate Division decided a legal question, the sufficiency of evidence. The distinction between the two is familiar. Evidence is sufficient as a matter of law where “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (People v Contes, 60 NY2d 620, 621 [1983] [emphasis omitted], quoting Jackson v Virginia, 443 US 307, 319 [1979]). But even where evidence is legally sufficient, a court that has factual review power may set aside a verdict as against the weight of the evidence if it finds that “the ‘trier of fact has failed to give the evidence the weight it should be accorded’ ” (People v Cahill, 2 NY3d 14, 58 [2003], quoting People v Bleakley, 69 NY2d 490, 495 [1987]).

It is hard to say here whether the Appellate Division decision is based on the weight or the sufficiency of the evidence, because the decision contains an internal inconsistency. The Court said it was ruling “on the law,” implying that it was ruling on the sufficiency of the evidence, but its opinion does not view the evidence in the light most favorable to the People, as it should have if it were deciding a sufficiency issue. The Appellate Division majority says that Johnson “swung his left arm inside the car and grabbed Conway’s right arm” (21 AD3d at 310)—a description contained in defendant’s testimony, but contradicted by other witnesses. Does this mean that the Appellate Division was weighing the facts, as it had power to do, and erroneously said that its decision was on the law? Or does it mean that, in the course of making a legal decision, the Appellate Division erroneously characterized the facts?

I conclude that we do not need to attach either a “sufficiency” or a “weight” label to the Appellate Division’s decision. Even if the Appellate Division decided a legal question, the sufficiency of the evidence, it also implicitly decided a factual question, the weight of the evidence.

While evidence is sufficient if a rational trier of fact could rely on it to convict, even a verdict that is not irrational may be set aside on weight of the evidence review. Thus, in some cases a court that rejects a verdict as not supported by legally sufficient evidence must, a fortiori, also find that the verdict is against the weight of the evidence. This will not always be true. Sometimes, a court may premise a decision of legal insufficiency on a mistaken view of substantive law, or of legal doctrines governing burden of proof, presumptions, inferences or some other procedural question. In such a case, it is possible that the same court that held the evidence insufficient might later find, once its legal error had been corrected, that the verdict was not against the weight of the evidence (e.g. People v Whipple, 276 AD2d 829 [3d Dept 2000] [reversing conviction for legal insufficiency], revd 97 NY2d 1 [2001], on remittal 291 AD2d 663 [2002] [affirming conviction]).

But I do not see how that could happen in this case. Assuming the Appellate Division here decided a legal question, it decided that the evidence against defendant was so weak that no reasonable factfinder could convict him. No judge who believed that could also believe that the verdict was not against the weight of the evidence; the two positions are logically contradictory. In short, this is a case where a ruling on the law is dependent on an implicit factual finding. The Appellate Division’s decision was not “on the law alone” and it was not “upon the law and such facts which, but for the determination of law, would not have led to reversal.”

The majority reverses what it views as the Appellate Division’s ruling on the sufficiency of the evidence, and remits the case to the Appellate Division for exercise of that Court’s factual review power. (Majority op at 870.) In doing so, the majority is, at best, requiring an empty exercise. If the Appellate Division is logically consistent, it must find that the verdict here was against the weight of the evidence, and must accordingly dismiss the indictment. I would recognize that the Appellate Division has already, in substance, made a factual decision that we may not review.

II

Though I do not think it necessary to reach the question of legal sufficiency, the majority does reach it, and therefore I consider it also. I think it is a close question, but I conclude that the evidence was legally insufficient to support the verdict.

To convict defendant of third degree assault, the trier of fact had to find that he acted with “criminal negligence” (Penal Law § 120.00 [3]). The definition of criminal negligence, quoted by the majority (majority op at 871, 872), requires both a failure “to perceive a substantial and unjustifiable risk” and “a gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law § 15.05 [4]). Thus, it is not enough to prove that defendant was negligent—that he failed to act reasonably; his departure from the conduct of a reasonable person must be “gross.”

It is true, of course, that we may not reverse a conviction for legal insufficiency merely because we disagree with the verdict; we may do so only if we conclude that the evidence fails to support a finding of the elements of the crime beyond a reasonable doubt. That is what we concluded in our leading case discussing the meaning of criminal negligence, People v Boutin (75 NY2d 692 [1990]). In that case, defendant, driving a truck on a highway, had failed to see and therefore crashed into a police car stopped in the road with its lights flashing. Two people were killed in the accident. We held that the driver’s conduct “may well constitute civil negligence” but that “the proof does not establish criminal negligence” (id. at 697). We reversed defendant’s conviction and dismissed the indictment.

Boutin, as I read it, establishes that even strong evidence of negligence in the ordinary sense is not sufficient to support a verdict of criminal negligence. The evidence must rationally support a finding of what we called in Boutin “criminally culpable risk-creating conduct” (id.)—i.e., conduct “which is inadvertent as to risk only because the actor is insensitive to the interests and claims of other persons in society” (id. at 696, quoting People v Haney (30 NY2d 328, 334 [1972]).

Here, I can readily see how a trier of fact could find defendant negligent in the ordinary sense. He or she could find that defendant was trying to do too many things at the same time, and should have bolstered his weapon rather than holding it in his weaker hand while he tried to seize Johnson through the window of his car. But I do not see a rationally persuasive argument that he was criminally negligent—that his conduct was a “gross deviation” from reasonableness or that he was “insensitive to the interests and claims of other persons in society.” Indeed, the majority opinion does not attempt a reasoned demonstration that defendant’s deviation from reasonableness was “gross”; it merely says that the trial court could have found that it was. Since I perceive no reasoned basis for doing so, I would, if I were to reach the merits, affirm the order of the Appellate Division.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur in memorandum; Judge R.S. Smith dissents and votes to dismiss the appeal in an opinion.

Order reversed, etc.

       The dissent asserts that a reversal and dismissal of the indictment by the Appellate Division on the basis of insufficiency necessarily encompasses a reversal on the basis of the weight of the evidence, and therefore divests us of jurisdiction. Neither the CPL nor our precedent supports this conclusion.


source: Caselaw Access Project

license: Public Domain

text:
    Taynisha Baez, Appellant, v Imamally Rahamatali et al., Respondents.
    Submitted April 17, 2006;
    decided May 4, 2006
   Motion to enlarge the record on appeal denied.


text:
    Albert Goetz-Haddad, Appellant, v Pathmark Supermarkets et al., Respondents.
    Submitted March 6, 2006;
    decided May 4, 2006
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; 5514 [a]). Motion for poor person relief dismissed as academic.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent.
    Submitted May 1, 2006;
    decided May 4, 2006
   Motion by Concerned Women for America et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted May 1, 2006;
    decided May 4, 2006
   Motion by Anti-Defamation League et al. for leave to appear amici curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted May 1, 2006;
    decided May 4, 2006
   Motion by NAACP Legal Defense and Educational Fund, Inc. for leave to file a brief amicus curiae on the appeals herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted May 1, 2006;
    decided May 4, 2006
   Motion by Suzanne B. Goldberg et al. for leave to file a brief amici curiae on the appeals herein granted and the proposed brief is accepted as filed.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. In the Matter of Elissa Kane et al., Appellants, v John Marsolais, as Albany City Clerk, et al., Respondents. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents. Jason Seymour et al., Appellants, v Julie Holcomb, as City Clerk of the City of Ithaca, et al., Respondents.
    Submitted May 1, 2006;
    decided May 4, 2006
   Motion by United Families International for leave to file a brief amicus curiae on the appeals herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. In the Matter of Elissa Kane et al., Appellants, v John Marsolais, as Albany City Clerk, et al., Respondents. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents. Jason Seymour et al., Appellants, v Julie Holcomb, as City Clerk of the City of Ithaca, et al., Respondents.
    Submitted May 1, 2006;
    decided May 4, 2006
   Motion by James Q. Wilson et al. for leave to file a brief amici curiae on the appeals herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. In the Matter of Elissa Kane et al., Appellants, v John Marsolais, as Albany City Clerk, et al., Respondents. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents. Jason Seymour et al., Appellants, v Julie Holcomb, as City Clerk of the City of Ithaca, et al., Respondents.
    Submitted May 1, 2006;
    decided May 4, 2006
   Motion by Alliance for Marriage for leave to file a brief amicus curiae on the appeals herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Daniel Hernandez et al., Appellants, v Victor L. Robles, Respondent. In the Matter of Elissa Kane et al., Appellants, v John Marsolais, as Albany City Clerk, et al., Respondents. Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents. Jason Seymour et al., Appellants, v Julie Holcomb, as City Clerk of the City of Ithaca, et al., Respondents.
    Submitted May 1, 2006;
    decided May 4, 2006
   Motion by Family Research Council for leave to file a brief amicus curiae on the appeals herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    Paul M. Morris, Appellant, v Schroder Capital Management International et al., Respondents.
    Submitted January 28, 2006;
    decided May 4, 2006
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


text:
    The People of the State of New York, Respondent, v Patricio Bautista, Appellant.
    Submitted May 1, 2006;
    decided May 4, 2006
   Motion by Prisoners’ Legal Services of New York et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed submission is accepted as filed.


text:
    The People of the State of New York, Respondent, v Natsu Carter, Appellant.
    Submitted May 1, 2006;
    decided May 4, 2006
   Motion for assignment of counsel granted and David P Elkovitch, care of Law Offices of David P Elkovitch, 199 Genesee Street, Auburn, New York 13021, assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Leonard Conforti, Also Known as Martin Cohen, Appellant.
    Submitted March 27, 2006;
    decided May 4, 2006
   Motion for reconsideration of this Court’s February 16, 2006 dismissal order denied [see 6 NY3d 798]. Motion for poor person relief dismissed as academic.


text:
    Sylvia Samuels et al., Appellants, v New York State Department of Health et al., Respondents.
    Submitted May 1, 2006;
    decided May 4, 2006
   Motion by Concerned Women for America et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Rosenblatt taking no part.


text:
    [ 850 NE2d 25, 817 NYS2d 210]
    Kevin Bernard et al., Respondents, v Musah Mumuni, Appellant, and Saday Allhassan, Respondent, et al., Defendant.
    Decided May 9, 2006

      APPEARANCES OF COUNSEL

      Rivkin Radler LLP, New York City (Harris J. Zakarin of counsel), for appellant.

      Martin, Fallon & Mullé, Huntington (Richard C. Mullé of counsel), for Saday Allhassan, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative, for the reasons stated in the opinion by Justice David Friedman at the Appellate Division (22 AD3d 186).

Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read. Judge R.S. Smith dissents and votes to reverse for the reasons stated in the dissenting opinion by Justice John W Sweeny at the Appellate Division (22 AD3d 186, 191-193).


author: Memorandum.

text:
    [ 849 NE2d 960, 816 NYS2d 737]
    In the Matter of Integrated Beverage Group Ltd., Appellant, v New York State Liquor Authority, Respondent.
    Decided May 9, 2006

      APPEARANCES OF COUNSEL

      Mehler & Buscemi, New York City (Martin B Mehler of counsel), for appellant.

      Scott Weiner, New York City, and Thomas G. McKeon for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The New York State Liquor Authority, acting within its statutory authority (see Alcoholic Beverage Control Law § 107-a [2]), rationally disapproved the brand label registration applications (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]; see also Matter of Affiliated Distillers Brands Corp. v State Liq. Auth., 24 NY2d 31, 39-40 [1969]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


text:
    [ 849 NE2d 961, 816 NYS2d 738]
    Dan Trevett, Individually and as Parent and Legal Guardian of Adam Trevett, an Infant, Appellant, v City of Little Falls, Respondent.
    Decided May 9, 2006

      APPEARANCES OF COUNSEL

      Michael A. Castle, Herkimer (Scott H. Oberman of counsel), for appellant.

      Cramer, Smith & Leach, P.C., Syracuse (Ralph S. Alexander of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured while attempting a lay up when he collided in mid-air with a pole supporting a basketball backboard and rim. The Appellate Division correctly held that the proximity of the pole to the court was open and obvious, and thus the risk of collision with the pole was inherent in playing on that court. Therefore, the Appellate Division properly dismissed the complaint on the ground that plaintiff had assumed the risk of injury (see Sykes v County of Erie, 94 NY2d 912 [2000]; Morgan v State of New York, 90 NY2d 471 [1997]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


text:
    In the Matter of Noel Feustel, Appellant, v Scott S. Rosenblum et al., Respondents.
    Submitted February 6, 2006;
    decided May 9, 2006
   Appeal taken as of right from the Appellate Division judgment dated December 12, 2005 (24 AD3d 549) and motion for leave to appeal from said judgment by Noel Feustel dismissed as moot upon the ground that the judgment of the Appellate Division has been vacated by a subsequent order of that Court (App Div, 2d Dept, Apr. 26, 2006, 2006 NY Slip Op 67498).


text:
    David E. Heim et al., Appellants, v Tri-Lakes Ford Mercury, Inc., et al., Respondents.
    Submitted February 21, 2006;
    decided May 9, 2006
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellants’ motion to renew, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    300 W. 106th St. Corp., Respondent, v Lawrence Kingsley, Also Known as Larry Kingsley, Also Known as “John Doe,” Appellant, and Linda Schoener, Respondent.
    Submitted March 20, 2006;
    decided May 9, 2006
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § CPLR 5602).


text:
    In the Matter of Stephen Vaughan, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents.
    Submitted March 13, 2006;
    decided May 9, 2006
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion for reconsideration, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    [ 850 NE2d 670, 817 NYS2d 623]
    Danilio Santos, an Infant, by His Mother and Natural Guardian, Luisa Almanzar, Appellant, v Baldwin-Endico Realty Associates, Respondent.
    Decided May 11, 2006

      APPEARANCES OF COUNSEL

      Alexander J. Wulwick, New York City, and Gurfein Douglas, LLP, for appellant.

      Cohen, Kuhn & Associates, New York City (Erika L. Hartley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs. We agree with the Appellate Division majority that plaintiff failed to raise an issue of fact as to whether the injuries alleged resulted from a dangerous condition of which defendant had actual or constructive notice (see Basso v Miller, 40 NY2d 233, 240-241 [1976]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


text:
    [ 850 NE2d 646, 817 NYS2d 599]
    In the Matter of Steven B., Respondent. Administration for Children’s Services of the City of New York, Respondent; Makeba S., Appellant.
    Decided May 11, 2006

      APPEARANCES OF COUNSEL

      Howard M. Simms, New York City, for appellant.

      Legal Aid Society, New York City (Judith Stern of counsel), law guardian.

      Louise Belulovich, New York City, for Steven B., respondent.

      Michael A. Cardozo, Corporation Counsel, New York City (Deborah A. Brenner of counsel), for Administration for Children’s Services, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs.

The grant or denial of a motion for “an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 NY2d 270, 283 [1984] [citations omitted]). Contrary to appellant mother’s claims, Family Court’s refusal to grant her application for an adjournment fails to constitute an abuse of discretion. Mother’s need for an adjournment to call additional witnesses resulted from her lack of due diligence in preparing for the hearing. Moreover, the witnesses she wished to call were not identified or would testify cumulatively. Under these circumstances, Family Court acted within its discretion in refusing to adjourn the hearing. Mother’s remaining contentions lack merit.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York ex rel. Anthony Wieners, Appellant, v William Lape, Respondent.
    Submitted March 20, 2006;
    decided May 11, 2006
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Sean Tapp, Appellant, v State of New York, Respondent.
    Submitted March 6, 2006;
    decided May 11, 2006
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


author: Per Curiam. G.B. Smith, J.

text:
    [849 NE2d 946, 816 NYS2d 723]
    In the Matter of Duane A. Hart, a Justice of the Supreme Court, Queens County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued March 28, 2006;
    decided May 4, 2006

      POINTS OF COUNSEL

      Herzfeld & Rubin, EC., New York City (Herbert Rubin and Lawton W. Squires of counsel), for petitioner.
    I. The State Commission on Judicial Conduct’s determination is in conflict with the Appellate Division decision. (Matter of Embser, 90 NY2d 711.) II. The facts support the declaration of summary contempt. (People v Higgins, 173 Misc 96; Matter of Mangiatordi v Hyman, 106 AD2d 576.) III. The State Commission on Judicial Conduct erred in its determination that there had been a violation of the rights of counsel to “assert their client’s interests.” (Matter of Katz v Murtagh, 28 NY2d 234.) IV The State Commission on Judicial Conduct failed to consider the difference between the declaration of the contempt and punishment for the contempt. (People v Eldridge, 8 AD3d 294; IBE Trade Corp. v Litvinenko, 288 AD2d 125.) V Respondent respectfully submits that censure is an excessively harsh sanction.

      Robert H. Tembeckjian, New York City, and Vickie Ma for respondent.
    I. Petitioner abused his judicial power in declaring summary contempt against a litigant out of pique toward his lawyer. (Matter of Feinberg, 5 NY3d 206; Matter of Katz v Murtagh, 28 NY2d 234; Matter of Rodriguez v Feinberg, 40 NY2d 994; Matter of O’Connell v Taddeo, 174 Misc 2d 110; Matter of Loeber v Teresi, 256 AD2d 747; Matter of Cohen [State Commn. on Jud. Conduct], 74 NY2d 272; Matter of Cerbone, 61 NY2d 93.) II. The appropriate sanction is censure. (Matter of Hamel [State Commn. on Jud. Conduct], 88 NY2d 317; Matter of Aldrich v State Commn. on Jud. Conduct, 58 NY2d 279.)
   OPINION OF THE COURT

Per Curiam.

Respondent Duane A. Hart, a Justice of the Supreme Court of the State of New York, Queens County, brings this proceeding to review a determination of the Commission on Judicial Conduct imposing a sanction of censure. We accept the Commission’s determination.

The instant matter began with a formal written complaint by the Commission containing two charges. The second charge — that Judge Hart wrongly held in contempt a litigant whose attorney made a record of an out-of-court encounter between the Judge and the litigant — is the subject of this proceeding. A Referee designated by the Commission held a hearing on the underlying facts. Testimony revealed that the matter of Modica v Modica, a constructive trust and unjust enrichment suit by John Módica (Módica) against his father, Salvatore, was assigned to Judge Hart for trial. After unsuccessful efforts to settle the matter, Judge Hart three times declared mistrials. Prior to the third, Módica’s attorneys had complained to the Administrative Judge that Judge Hart was delaying the case; subsequently they moved to recuse him on the ground that he had predetermined the case.

Judge Hart held the recusal motion in abeyance after the third mistrial and directed the parties to be ready for trial on April 21, 2003. While Módica was on the stand, the Judge declared shortly before 1:00 p.m. that because of a personal matter, court would recess for the day. Módica then requested an additional day’s adjournment so that he could attend his son’s championship soccer game but Judge Hart denied the request and told the parties to be in court the next day.

After leaving the courthouse, Módica saw the Judge in the judges’ parking lot and approached him intending to revisit the request for the adjournment. The litigant said, “Excuse me, Your Honor” and Judge Hart called out to a court officer to secure Módica. The officer walked over, called her supervisor, Lieutenant Lawrence Sullivan, and escorted Módica to the nearby security booth. Lieutenant Sullivan soon arrived and spoke with Judge Hart, who directed him to let Módica go with a warning. Lieutenant Sullivan did so, and then wrote an Unusual Occurrence Report, which stated in part:

“Módica stated he was passing by and saw Judge Hart and thought he could ask for an adjournment of his case due to the unavailability of his son. He was advised by myself not to approach any judge at any time. He agreed and Judge Hart requested that we disregard the matter.”

The next morning Módica appeared in court and reported the incident to his attorneys. When Judge Hart took the bench (the court reporter was not yet present) he appeared angry and upset, stating that Módica had “accosted” him in the parking lot and he was considering holding Módica in contempt. The Judge noted that he could put Módica in jail without a hearing for 30 days, or after a hearing for six months or a year. Lieutenant Sullivan was brought into the courtroom to make a statement, and explained that he gave Módica a “very harsh” warning, that Módica was cooperative and no further action was taken. Based on the officer’s statement and his own feelings at that point, the Judge concluded he would not hold Módica in contempt.

Next, counsel for Módica asked to make a record of the incident and the Judge replied that if counsel placed the matter on the record, he would hold Módica in contempt. Módica and counsel conferred and counsel again insisted that he wished to make a record. Judge Hart demanded that Módica admit that the encounter was intentional, but counsel claimed that it was coincidental. The Judge stated, “[i]f you insist upon making that record, I’ve got to take some remedial action, so that I and the other judges aren’t bothered by Mr. Módica.”

Counsel placed on the record (the court reporter had since arrived) Modica’s account of the incident, and the Judge declared Módica in contempt:

“I find your client in contempt. He tried to intimidate the Court. I sentenced him to 30 days. I will suspend sentence pending the outcome of this trial. If I hear so much as a muttering from him, if I think that he’s making a face at me, if I think he’s doing anything, he shall be remanded by Officer Battle forthwith, and he shall spend every bit of 30 days as a guest of the City of New York. I find that his act in accosting me in the parking lot was contumacious conduct, if there ever was contumacious conduct. He was not supposed to do it. Let the record show I tried to let it go with a warning, but you and your associate decided to put it on the record, and I told you if you wanted to keep the matter going, fine. I will hold him in contempt and therefore I did.”

Módica then took the stand to resume his testimony, and when it ended that day, the Judge dismissed the lawsuit and vacated the contempt finding.

The Referee concluded that the second charge had been sustained by a preponderance of the evidence. In August 2005 the Commission heard oral argument and issued its determination on October 20, 2005, concluding that the second charge had been sustained and that Judge Hart violated sections 100.1, 100.2 (A), and 100.3 (B) (1) and (3) of the Rules of Judicial Conduct (22 NYCRR), sections 700.5 (a) and (e), 701.2 (a) and (c), and 701.4 of the Rules of the Appellate Division, Second Department (22 NYCRR) and section 755 of the Judiciary Law. In overriding the milder sanction of admonition urged by its own Administrator, the Commission stated the following:

“We find respondent’s misconduct particularly troubling notwithstanding that later that same day, at the conclusion of the trial, he corrected his injudicions decision by vacating the contempt finding. Several factors have persuaded us that a severe sanction is appropriate in this case.
“First, respondent continues to insist that his actions were appropriate and, indeed, asserts that in similar circumstances he would do the same thing again. Such intransigence suggests that respondent still fails to recognize that the awesome contempt power should be exercised only with appropriate restraint and within the carefully mandated safeguards. A judge’s ‘fail[ure] to recognize the inappropriateness of his actions or attitudes’ is a significant aggravating factor on the issue of sanctions.
“Second, we note with concern respondent’s conflicting testimony as to certain matters ... as well as his tendency to accuse others of misdeeds in order to justify his own misbehavior. Respondent’s claim that he tried to prevent the attorney from making a record because he knew the attorney wanted to make a ‘phony’ record is entirely unsupported.
“In sum, we find that respondent’s conduct constitutes a significant departure from the role of a judge, who is required to be the ‘exemplar of dignity and impartiality’ and to exercise the considerable powers of judicial office within the bounds of the law. We trust that respondent will learn from this episode and that, in light of this decision, he will modify his behavior appropriately” (citations omitted).

Pursuant to its authority under article VI, § 22 (a) of the New York Constitution and Judiciary Law § 44 (1), the Commission unanimously found a violation. Seven members imposed a sanction of censure; three concluded that the lesser sanction of admonition was appropriate. Judge Hart now brings this proceeding to review the Commission’s determination.

Discussion

We concur with the Commission’s conclusion that Judge Hart acted in excess of his authority pursuant to Judiciary Law § 755, the summary contempt power. As we explained in Matter of Katz v Murtagh (28 NY2d 234, 238 [1971]), the summary procedure is “so summary that the right and need for an evidentiary hearing, counsel, opportunity for adjournment, reference to another Judge, and the like, are not allowable because it would be entirely frustrative of the maintenance of order.” The Judge’s actions, however, in holding Módica in summary contempt for counsel’s attempt to place the parking lot incident on the record, were seriously flawed (see e.g. Matter of Hamel [State Commn. on Jud. Conduct], 88 NY2d 317 [1996] [judge failed to appreciate the egregiousness of misuse of the summary contempt power]). His exercise of summary contempt was a misuse of judicial power in these circumstances. Summary contempt should be employed where a court reasonably believes that prompt adjudication may aid in restoring order and decorum in the courtroom (see Matter of Doyle v Aison, 216 AD2d 634, 636 [3d Dept 1995]; Samuelsen v Samuelsen, 124 AD2d 650, 652 [2d Dept 1986]). It may not be employed retributively against a litigant because his attorney makes a record.

As section 701.2 (a) of the Rules of the Appellate Division, Second Department makes clear, moreover, the court’s summary power to punish contempt in its immediate view shall be exercised only in two exceptional circumstances:

“(1) Where the offending conduct disrupts or threatens to disrupt proceedings actually in progress; or
“(2) where the offending conduct destroys or undermines or tends seriously to destroy or undermine the dignity and authority of the court in a manner and to the extent that it appears unlikely that the court will be able to continue to conduct its normal business in an appropriate way” (22 NYCRR 701.2 [a]).

Módica’s out-of-court approach of the Judge was admittedly intrusive. It nevertheless had no effect on proceedings actually in progress, nor was there any possibility that it could undermine the dignity of the court to the extent that court business foundered. We thus concur with the Commission’s determination that Judge Hart acted in excess of his authority under section 701.2 (a).

The Commission further determined that the Judge violated subdivisions (a) and (e) of section 700.5 of the Rules of the Appellate Division, Second Department: the obligation (a) to be at all times dignified, courteous and considerate, and (e) to “suppress his personal predilections, control his temper and emotions, and otherwise avoid conduct on his part which tends to demean the proceedings or to undermine his authority in the courtroom” (22 NYCRR 700.5 [a], [e]). The record shows that the Judge angrily took the bench the morning after the incident; his own words in issuing the contempt order speak volumes about his deportment and temper: “[i]f I hear so much as a muttering from him, if I think that he’s making a face at me, if I think he’s doing anything, he shall be remanded by Officer Battle forthwith, and he shall spend every bit of 30 days as a guest of the City of New York.” We concur with the Commission that by this conduct the Judge violated these Rules.

Next, we turn to the appropriate sanction in this case. While unanimous as to the issue of violation, we divide as to whether censure or admonition is the appropriate remedy.

As we have repeatedly stated, members of the judiciary are held to higher standards of conduct than members of the public, and the effects of a judge’s conduct on public confidence in judicial temperament and character must be weighed. Applying these principles, we agree with the Commission that though the Judge’s conduct did not rise to a level warranting removal (see e.g. Matter of Cohen [State Commn. on Jud. Conduct], 74 NY2d 272, 276-278 [1989]; Matter of Aldrich v State Commn. on Jud. Conduct, 58 NY2d 279, 282-283 [1983]), it was unquestionably serious conduct deserving the weighty sanction of censure.

Censure has generally been employed when a judge’s conduct is inconsistent with the role of judge or amounts to an abuse of judicial power. Recently, in Matter of Mills, the Commission imposed a sanction of censure, concluding that:

“[t]he exercise of the enormous power of summary contempt requires strict compliance with statutory safeguards, including giving the accused an appropriate warning and the opportunity to desist from the supposedly contumacious conduct and preparing an order setting forth the basis for the ruling. Here, respondent not only wielded the power without reasonable basis, but failed to adhere to mandated procedures. Such conduct constitutes an abuse of the summary contempt power and warrants discipline” (2005 Ann Report of NY Commn on Jud Conduct 185, 191-192 [Dec. 6, 2004] [citations omitted]; see also Matter of Teresi, 2002 Ann Report of NY Commn on Jud Conduct 163 [Feb. 8, 2001] [judge censured for misuse of summary contempt power, bias against unrepresented litigant and aggressive, disparaging behavior to litigants and attorneys]; Matter of Recant, 2002 Ann Report of NY Commn on Jud Conduct 139, 144 [Nov. 19, 2001] [judge censured for “significant departure from the proper role of a judge” and misuse of summary contempt power]).

To be sure, some judges who have similarly misused the summary contempt power have received only an admonition. For example, in Matter of Sharpe, a judge held a veteran prosecutor in summary contempt and placed him in a detention area for prisoners because his witness was late to court, but quickly vacated the contempt order after the witness arrived. By the judge’s own later admission to the Commission, however, the prosecutor “had engaged in no improper, discourteous or contumacious conduct” (1984 Ann Report of NY Commn on Jud Conduct 134, 139 [June 6, 1983]). The Commission determined that the judge had engaged in a “gross abuse of power” and imposed a sanction of admonition (id.).

In Matter of Feinman, a judge detained a defendant (who was at liberty) for nearly two hours in handcuffs in the courtroom, because his beeper had sounded in court and, as a court officer reported to the judge, defendant had cursed at the court officer and the court out of the judge’s earshot. The judge conceded to the Commission that he could not have reasonably concluded from his own observation that the defendant’s behavior was disorderly, contemptuous or insolent. Thus, the Commission held that the judge, having not personally witnessed the alleged contempt, was required to give the defendant notice and a hearing before he could impose punishment. The Commission found the judge to be “cooperative and contrite” when confronted with his misuse of judicial power, and imposed a sanction of admonition (2000 Ann Report of NY Commn on Jud Conduct 105, 108 [Dec. 21, 1999]).

We agree with the Commission that what makes this case more deserving of censure, and less like the result in Sharpe and Feinman, are two troubling elements, in addition to abuse of the summary contempt power: first, Judge Hart’s adamant assertion that no misconduct occurred and he would “Absolutely” do the same thing a second time if the circumstances presented themselves; and second, his several instances of conflicting testimony as to certain matters as well as his tendency to accuse others of misdeeds in order to justify his own misbehavior (spelled out in the Commission decision).

As the Commission observed, Judge Hart has failed to this day “to recognize that the awesome contempt power should be exercised only with appropriate restraint and within the carefully mandated safeguards. A judge’s ‘fail[ure] to recognize the inappropriateness of his actions . . .’ is a significant aggravating factor on the issue of sanctions” (quoting Matter of Aldrich, 58 NY2d at 283; see also Matter of Bauer, 3 NY3d 158, 162 [2004]).

Indeed, Judge Hart continues before us to insist that he has not misused his judicial authority, claiming that the facts support his declaration of summary contempt, and that the Commission erred both in determining that he violated the rights of counsel to assert Módica’s interests and in failing to consider the difference between a declaration of contempt and punishment for contempt. The final point of the Judge’s brief maintains that at most, he should receive a private letter of caution because he has already sustained the sharp and stinging criticism of the Commission. In fact, other than immediately vacating the contempt order, he has in no way acknowledged wrongdoing, or shown insight into his conduct. A judge need not adopt a posture of obeisance before the Commission or this Court. A judge must, however, recognize wrongdoing in order to forestall the inevitable, unfortunate conclusion that, absent a harsher sanction, more of the same will ensue.

Finally, addressing the concluding paragraph of the dissent, like the Commission — which imposed a sanction higher than that recommended by its own Administrator — we are satisfied that the additional elements, beyond the summary contempt order, distinguish this case from Sharpe and Feinman and support the imposition of a harsher sanction. There is no unevenness in the law here.

Accordingly, the Commission’s determined sanction should be accepted.

G.B. Smith, J.

(dissenting). Because the sanction of censure under the circumstances of this case is at odds with cases in which more grievous conduct resulted in admonition and, further, comes nowhere near the conduct in other cases that resulted in censure, I dissent.

In Matter of Sharpe, the judge ordered an assistant district attorney to produce a witness in two minutes or he would be jailed. The witness did not appear and the assistant was put in jail for a period of between 15 and 45 minutes. The attorney was not given an opportunity to address the court before he was jailed. He was released only when the witness appeared (see 1984 Ann Report of NY Commn on Jud Conduct 134, 139 [June 6, 1983]). The judge in Sharpe then vacated the contempt ruling and expunged the record. The Commission determined that the judge had engaged in a “gross abuse of power” but issued a sanction of admonition. (Id.)

In Matter of Feinman (see 2000 Ann Report of NY Commn on Jud Conduct 105 [Dec. 21, 1999]), the judge detained a litigant for one hour and 40 minutes in handcuffs, in his courtroom, without explaining the reason either to the detainee or to his attorneys. The detention occurred because the litigant’s beeper sounded in court and because of comments that he allegedly made to a court officer. The detainee was not given any notice that his actions would result in detention, and was deprived of his liberty without any sound legal reason.

The judge released the detainee after lunch and did not hold him in summary contempt of court. The Commission found the judge to be “cooperative and contrite” when confronted with his misuse of judicial power. (Id. at 108.) The sanction in Feinman was admonition.

The disparity in the sanction given respondent here and the sanctions given to other judges, evident in the admonitions given in Sharpe and Feinman, is even more pronounced when the facts of this case are compared to facts in other cases where the sanction was censure. In Matter of Recant (2002 Ann Report of NY Commn on Jud Conduct 139 [Nov. 19, 2001]), Recant was censured for conduct that included engaging in an improper ex parte conversation with the supervisor of an assistant district attorney, misusing bail in three cases in order to attempt to coerce a guilty plea, holding two defendants in custody, at least one of them being placed in handcuffs, without complying with the procedure for summary contempt, refusing to hear an attorney on the record and excluding two attorneys from her courtroom without establishing on the record a justification for such action and without a summary contempt proceeding.

In Matter of Teresi (I) (2002 Ann Report of NY Commn on Jud Conduct 163 [Feb. 8, 2001]), Teresi was censured for conduct that included incarcerating two people, one for a day and one for a weekend, without a hearing, finding a litigant in contempt of court and ordering him to serve six months in jail without a written order for refusing to sign a deed (the litigant served 45 days before being released by another judge) and refusing to allow parties to make a record where the judge ordered a trial prior to the already scheduled date when the parties refused to settle.

In Matter of Teresi (II) (2005 Ann Report of NY Commn on Jud Conduct 216 [Dec. 17, 2004]), Teresi was again censured for holding an ex parte conversation in chambers, this time with a nun who was to be an expert witness in a drunk driving case before him, not telling the parties about the conversation and denying defendant’s request for an adjournment in order to obtain another expert witness after the nun withdrew as a witness.

Respondent, while not contrite, did vacate the finding of contempt without jailing or handcuffing the party. Further, his attorney was able to make a record of the parking lot incident. What is at issue is how the Judge handled the incident rather than the actual consequences of his actions. Based on the isolated incident and the fact that the Commission has previously held that misuse of summary contempt, on its own, can result in admonition, depending on the underlying facts, the sanction here should be admonition.

One of the concerns of the Commission is that the respondent stated that he would act in the same way in the future. He was not asked, however, whether he would persist in the view that he would do it again if this Court indicated that the wrong procedure was used in finding Módica in contempt or that, under the circumstances, summary contempt should not have been found. It is simply unrealistic to conclude that this former assistant district attorney, former Civil Court Judge and now Supreme Court Justice, with an unblemished record, would ignore a ruling of this Court.

This Court is not required to accept the sanction of the Commission and, in fact, has the power to reject both the factual determination and the sanction (see NY Const, art VI, § 22 [d] [“The court of appeals may impose a less or more severe sanction prescribed by this section than the one determined by the commission, or impose no sanction”]). Because of Commission precedents and because the summary contempt here was not carried forward, the sanction should be admonition.

Finally, while as noted by the majority, the foregoing cases were decided by the Commission on Judicial Conduct and not the Court of Appeals, it is the Court of Appeals that has the duty in this state to ensure that the law is applied in an evenhanded fashion. When the Commission admonishes a judge who jails a lawyer because he cannot produce a witness in two minutes and admonishes another judge who permits a person to remain handcuffed during a luncheon recess, but requires censure for this respondent, who found a person in contempt but vacated the contempt without further action, the law is being applied in an uneven fashion. When the Commission censures a judge who attempts to coerce pleas by threatening high bail and that same judge excludes attorneys from the courtroom and places persons in custody and handcuffs without employing the procedure for summary contempt, and when the Commission censures another judge who incarcerates persons for a day, a weekend or 45 days while at the same time censuring this respondent who did not jail anyone, the law is being applied in an uneven fashion.

Accordingly, I dissent.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo and R.S. Smith concur in per curiam opinion; Judge G.B. Smith dissents in a separate opinion in which Judge Read concurs.

Determined sanction accepted, without costs.

      . The Judge later told the Commission that if Modica’s attorneys hadn’t complained to the Administrative Judge, “I’d have let [Módica] see the soccer match. I didn’t care. It was a non-jury trial. ... I had other things to do.”

        . Módica appealed from the dismissal. The Appellate Division, Second Department affirmed the judgment insofar as appealed from (15 AD3d 635 [2d Dept 2005]), concluding that there was no rational process by which the court could base a finding in favor of Módica, and that Modica’s recusal motion failed to set forth proof of bias requiring Judge Hart to recuse himself. The Appellate Division also concluded that Modica’s remaining contentions were without merit.

      . That section states:
      “[w]here the offense is committed in the immediate view and presence of the court, or of the judge or referee, upon a trial or hearing, it may be punished summarily. For that purpose, an order must be made by the court, judge, or referee, stating the facts which constitute the offense and which bring the case within the provisions of this section, and plainly and specifically prescribing the punishment to be inflicted therefor. Such order is reviewable by a proceeding under article seventy-eight of the civil practice law and rules” (Judiciary Law § 755).

      . In the moment, the Judge took the correct course by summoning a court officer. Regrettably, the matter did not end there, but was revived the following morning by the Judge.

      . We further accept the Commission’s determination that Judge Hart never told Módica on the record that a simple apology would have sufficed; nor did the Judge warn Módica or give him an opportunity to make a statement in his defense or in extenuation of his conduct, as required by sections 701.2 (c) and 701.4 of the Rules of the Appellate Division, Second Department (22 NYCRR 701.2 [c]; 701.4; see also 22 NYCRR 100.3 [B] [1] [requiring a judge to be faithful to the law and maintain professional competence in the law]).

      . Similarly, section 100.1 of the Rules of Judicial Conduct requires that a judge should enforce high standards of conduct and shall personally observe those standards; section 100.2 (A) requires that a judge shall act at all times in a manner that promotes public confidence in the integrity of the judiciary; and section 100.3 (B) (3) requires that a judge shall be patient, dignified and courteous (22 NYCRR 100.1, 100.2 [A]; 100.3 [B] [3]).

      . The dissent’s assertion that Judge Hart would abide by a ruling of this Court to the contrary does not alter our view of his past conduct or the appropriate sanction: an experienced former prosecutor and seasoned Judge after but a moment’s reflection should have realized that the contempt ruling, which he himself vacated, was wrong.


author: R.S. Smith, J. G.B. Smith, J.

text:
    [849 NE2d 962, 816 NYS2d 739]
    The People of the State of New York, Respondent, v Ronald Williams, Appellant.
    Argued March 21, 2006;
    decided May 11, 2006

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Brian W. Stull, Richard M. Greenberg and Daniel A. Warshawsky of counsel), for appellant.
    I. Because the prosecution committed a flagrant Brady violation when it suppressed evidence that its sole Mapp witness, Detective Anthony Gordon, was a perjurer, Ronald Williams is entitled to a new trial. (People v Feerick, 93 NY2d 433; People v Vilardi, 76 NY2d 67; People v Havelka, 45 NY2d 636; Giglio v United States, 405 US 150; People v Geaslen, 54 NY2d 510; People v Cahill, 2 NY3d 14; People v Banch, 80 NY2d 610; People v Bryant, 37 NY2d 208; People v Robinson, 100 AD2d 945; People v Cannon, 171 AD2d 752.) II. Where the prosecution was forced to disclose evidence that Detective Anthony Gordon, a key witness, was suspected of perjury in another case, and where, in reliance on that evidence, Ronald Williams reasonably based his defense on the theory that the police, as a team, were lying, the court erred in precluding evidence that this key police witness was suspected of perjury. (People v Wright, 86 NY2d 591; Crane v Kentucky, 476 US 683; California v Trombetta, 467 US 479; People v Gilliam, 45 AD2d 744, 37 NY2d 722; People v Szwec, 271 AD2d 322; People v Rojas, 97 NY2d 32.) III. The sale counts of Ronald Williams’s indictment must be dismissed where Detective Anthony Gordon falsely testified before the grand jury, where the prosecution itself charged that Detective Gordon perjured himself in a different narcotics grand jury proceeding that same day, and where the competent evidence before the grand jury was legally insufficient to support the indictment on these counts. (United States v Basurto, 497 F2d 781; People v Pelchat, 62 NY2d 97; People v Alexander, 136 AD2d 332; People v Johnson, 156 Misc 2d 159;
      People v Llewelyn, 136 Misc 2d 525; People v Ford, 62 NY2d 275; People v Davis, 256 AD2d 200; People v Reyes, 82 AD2d 925; People v La Belle, 18 NY2d 405.)

      Robert M. Morgenthau, District Attorney, New York City (Mary C. Farrington and Eleanor J. Ostrow of counsel), for respondent.
    I. The Judge’s decision to reopen the Mapp/Dunaway hearing after the disclosure of the investigation into whether detective Anthony Gordon committed perjury in an unrelated case was a proper exercise of discretion. (People v Feerick, 93 NY2d 433; People v Havelka, 45 NY2d 636; Brady v Maryland, 373 US 83; People v Fernandez, 249 AD2d 3; People v Martin, 240 AD2d 5, 92 NY2d 856; People v Baxley, 84 NY2d 208; People v Cortijo, 70 NY2d 868; People v Jenkins, 98 NY2d 280; People v Geaslen, 54 NY2d 510; People v Liang Jun Ying, 236 AD2d 630.) II. At trial, defendant was not entitled to elicit from Detective Anthony Gordon, a defense witness, evidence of Gordon’s suspected perjury in an unrelated case. (People v Kello, 96 NY2d 740; People v Scarola, 71 NY2d 769; People v Harris, 57 NY2d 335, 460 US 1047; People v Fitzpatrick, 40 NY2d 44; People v Maerling, 64 NY2d 134; People v Minsky, 227 NY 94; People v Parsons, 6 AD3d 364, 3 NY3d 679; People v Roberson, 276 AD2d 446, 96 NY2d 805; People v Thomas, 46 NY2d 100; People v Wright, 86 NY2d 591.) III. The integrity of the grand jury was not impaired, and the evidence before the grand jury amply supported the counts charging defendant with the sale of heroin. (People v Pelchat, 62 NY2d 97; People v Goetz, 68 NY2d 96; People v Alexander, 136 AD2d 332; People v Swamp, 84 NY2d 725; People v Davis, 256 AD2d 200; People v Figueroa, 167 AD2d 101; People v Hansen, 95 NY2d 227; People v Avant, 33 NY2d 265; People v Di Napoli, 108 AD2d 650, 66 NY2d 812.)
   OPINION OF THE COURT

R.S. Smith, J.

During defendant’s trial, the court became aware that a Brady violation had occurred at a pretrial suppression hearing, when the People failed to disclose facts harmful to the credibility of their only witness. The trial court ordered a new suppression hearing, at which defendant was allowed to attack the witness’s credibility with the newly-disclosed evidence, and the People were allowed to call another witness who did not have the same credibility problem. We hold that in choosing this remedy the trial court did not abuse its discretion.

Facts and Procedural History

Defendant was prosecuted for the sale and possession of a controlled substance. He moved to suppress prerecorded buy money and other evidence taken from him when he was arrested, claiming that the arrest was without probable cause.

At the hearing on the motion to suppress, the People’s only witness was Detective Anthony Gordon. Gordon testified that, sitting in a car with his partner Sergeant Archie Washington, he overheard through a one-way radio a conversation about a drug transaction being conducted in another car nearby. In the conversation as recounted by Gordon, two undercover detectives gave money to a man named Maurice Mayo and asked for more drugs than Mayo had with him; Mayo said he would get more from someone named “Ron” and left the car. Gordon said that he left the car and followed Mayo down the street, where he observed Mayo meet defendant and hand him money. Gordon and Washington then arrested defendant.

At the time of Gordon’s hearing testimony some members of the District Attorney’s office knew, though the assistant conducting the hearing did not, that Gordon was the subject of a perjury investigation growing out of a contemporaneous but unrelated case. The investigation began because Gordon admitted to an assistant district attorney that he did not in fact see some drug-related activity he told a grand jury he saw. Eventually — after the trial in the present case — Gordon was indicted for perjury, tried and acquitted.

After Gordon’s testimony at the suppression hearing was completed, the hearing was adjourned for several months. By the time it resumed, the assistant handling the hearing was aware of the perjury investigation of Gordon, but he did not bring it to the court’s attention. The People called no other witnesses, and relied on Gordon’s testimony in opposing the suppression motion. The court denied the motion.

At defendant’s trial, the People did not call Gordon; they relied instead on the testimony of Washington and three other police officers. On the second day of trial, however, defense counsel asked that Gordon be made available as a defense witness. The next morning, the People described the perjury investigation to the court at an ex parte conference, and the court immediately disclosed the existence and the thrust of the investigation to the defense.

There followed a flurry of motions, arguments and rulings, continuing intermittently through the rest of the trial and even after the jury returned a verdict of guilty. Most important for our purposes, the court rejected defense arguments that, as a result of the Brady violation at the hearing on the suppression motion, either the motion should be granted or the hearing reopened for the sole purpose of allowing defendant to use the information about the perjury investigation. Instead, the court conducted a new hearing, at which it received Gordon’s pretrial hearing testimony; a stipulation that Gordon would take the Fifth Amendment if questioned about the perjury investigation or the facts underlying it; and stipulations reflecting some discrepancies between Gordon’s hearing testimony and the testimony he gave as a defense witness at trial. The court also invited the parties to call other witnesses; the People accepted the invitation and called Washington, who described essentially the same series of events that Gordon had.

After the new suppression hearing, the trial court denied defendant’s motion to suppress, expressing doubt about Gordon’s credibility, but finding Washington credible. The Appellate Division affirmed defendant’s conviction, rejecting several arguments based on Gordon’s alleged perjury, including the argument that defendant was entitled to a more limited reopening of the suppression hearing. We now affirm.

Discussion

It is for the trial court, in the exercise of its discretion, to choose a remedy for errors like the one in this case (see People v Jenkins, 98 NY2d 280, 281 [2002]; People v Feerick, 93 NY2d 433, 451-452 [1999]). The trial court did not abuse its discretion in choosing a remedy here.

The error was, as the trial court recognized, a serious one. Under Brady v Maryland (373 US 83 [1963]) and cases applying it, defendant was entitled to disclosure of any “evidence of a material nature [favorable to the defense] which if disclosed could affect the ultimate decision on a suppression motion” (People v Geaslen, 54 NY2d 510, 516 [1981]). There was no excuse for the People’s failure to make the hearing judge aware of the perjury investigation of Gordon — at the same time that the People were asking the hearing judge to rely on Gordon’s testimony to deny suppression. At best, as the People now concede, they were guilty of a significant misjudgment.

But not every significant misjudgment by the prosecution entitles the defendant to a windfall. The trial court here did not find the People’s misconduct to be willful, and nothing in the record suggests that they committed the grossest kind of Brady violation — one that is designed to conceal the truth about the case from the factfinder. Indeed, the record strongly indicates not only that there was probable cause to arrest defendant but that, whether or not Gordon was in general a reliable witness, his account of the events leading to the arrest was largely true. The relatively minor point mentioned in the dissenting opinion — that Gordon originally said he saw money change hands, but later said he saw only movements consistent with money changing hands (dissenting op at 25) — illustrates how little reason there is to doubt the basic accuracy of Gordon’s testimony.

By permitting Washington to testify at the new suppression hearing, the trial court increased the likelihood that the motion to suppress would be decided correctly, based on the best available evidence of what really happened. Defendant argues that Washington’s testimony should have been excluded to punish the People for the Brady violation, and to deter future violations; but courts are not always required to sacrifice justice in the case before them to the possibility of such deterrence. “The principle ... is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused” (Brady, 373 US at 87). The Brady rule exists to prevent miscarriages of justice; the remedy defendant seeks here might well have created one.

Defendant cites People v Feerick (93 NY2d 433 [1999]) in support of his argument that a hearing reopened for the sole purpose of allowing defendant to make use of the newly-disclosed Brady material was the only proper remedy. Feerick does not support this conclusion. In Feerick, the People had failed to turn over certain Rosario material at a pretrial hearing (People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866 [1961]). In that case, in contrast to this one, it was defendant who sought a de novo hearing, but the trial court only ordered the hearing reopened “to the extent necessary to explore the contents of the Rosario documents” (93 NY2d at 451). We held that this ruling was within the trial court’s discretion (id. at 451-452), but we did not suggest that such a limited reopening is always required as a matter of law. Indeed, in Feerick we distinguished, but did not reject, People v Banch (80 NY2d 610, 619 [1992]), in which we ordered “a new suppression hearing” as a remedy for a Rosario violation. (See also People v Geaslen, 54 NY2d 510, 517 [1981] [new hearing as remedy for Brady violation].)

Nor do People v Bryant (37 NY2d 208 [1975]) and People v Havelka (45 NY2d 636 [1978]) require the remedy defendant here prefers. In both Bryant and Havelka, the People had failed, at a pretrial hearing, to produce enough evidence to justify certain police conduct; in each case, we held it was error to give the People a second chance to produce more evidence, when they had had a full opportunity the first time. This case is different, because there is no claim here that the People’s proof at the suppression hearing was insufficient; the claim was that there was an error at the hearing — that, because of the nondisclosure of Brady material, defendant did not have a fair chance to refute the People’s case. Bryant and Havelka do not hold or imply that a new hearing is forbidden when the result of the first hearing is invalidated by a flaw in the proceeding. On the contrary, a new hearing is the normal remedy for an error in procedure that is not harmless.

Finally, we reject as without merit defendant’s other arguments based on Gordon’s alleged perjury. Gordon’s testimony before the grand jury did not impair the integrity of the grand jury proceeding (cf. People v Pelchat, 62 NY2d 97 [1984]). And the trial court had discretion to reject defendant’s attempt at trial, where Gordon was a defense witness, to elicit the facts underlying the perjury investigation as support for a wholly speculative theory about a police conspiracy.

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

G.B. Smith, J.

(dissenting in part). At a Mapp hearing to suppress physical evidence, the prosecution permitted a police officer to testify without revealing that the officer was under investigation for peijury. Moreover, the testimony of that officer before the grand jury was false and his truthful testimony would not have established probable cause for an arrest. The failure of the prosecution to reveal Brady material should have led to the suppression of evidence taken from defendant at the time of his arrest. No reopened or new suppression hearing should have been permitted. Accordingly, we dissent.

Facts

Over the course of approximately eight months beginning in 2000, the police undertook an undercover narcotics investigation at the Frederick Douglass housing development in Manhattan. A detective developed a relationship with a local barber, Maurice Mayo, who began selling narcotics to undercover agents. The police first encountered defendant on April 12, 2001. Shortly after 9:00 p.m., Mayo met with detectives in their undercover car and exchanged four bundles of heroin for $320 prerecorded money. One detective asked Mayo for an additional amount of heroin. The officers then watched Mayo meet defendant and exchange money. Defendant and Mayo were arrested. Defendant’s driver’s license and the prerecorded buy money were found on his person. Neither Detective Gordon nor other members of the field team knew defendant prior to the arrest. Shortly after defendant’s arrest, the police executed a search warrant at his apartment. The search produced narcotics, drug paraphernalia and money.

On November 14, 2001, Detective Gordon was called as the only witness to testify in a Mapp hearing. At the time, Detective Gordon was under investigation for perjury before the grand jury in another case, People v Greene. This fact was not revealed at the Mapp hearing. Specifically, Detective Gordon had admitted to an assistant district attorney that he did not see the defendant in that case remove a bag that contained crack from a stairway in a building in East Harlem even though he testified before a grand jury that he had. As a result of this revelation, the assistant district attorney dismissed the indictment in Greene and sent a complaint on Detective Gordon to the official corruption unit which is part of the District Attorney’s office.

The Mapp hearing in this case did not conclude until April 17, 2002 when the court denied the motion to suppress. At that time, there was no disclosure by the prosecution of the peijury investigation of Detective Gordon.

At the trial, the People did not call Detective Gordon. Defendant, however, made known to the prosecution his intention to call the detective. The prosecution then disclosed for the first time that Detective Gordon was under investigation for perjury committed before a grand jury in another case, and that Gordon was likely to take the Fifth Amendment concerning questions regarding any past misconduct or any inconsistent statements before a grand jury. This disclosure came almost two months after the close of the suppression hearing.

On June 14, 2002, in an ex parte application, the prosecution revealed to the court, for the first time, the ongoing investigation against Gordon for perjury in the Greene matter. The court adopted the prosecution’s suggestion that defendant should receive a de novo Mapp hearing prior to the evidence being presented to the jury for deliberation. Defendant, at first, rejected the de novo hearing and argued for a mistrial based upon the Brady violation. The trial court denied defendant’s motion. Subsequently, when defendant asked for a de novo suppression hearing, the People opposed the new request as untimely, but instead proposed a reopened suppression hearing where the People and defendant could call any witnesses of their choosing. The judge granted the motion to reopen the hearing with new witnesses.

At the reopened hearing, Sergeant Washington testified about the surveillance and arrest on April 12, 2001. The facts of the story were similar to those recounted by Detective Gordon. After the evidence was heard, trial court found Sergeant Washington to be credible and admitted all the evidence obtained from defendant at the scene of the arrest. The trial court did not accept Detective Gordon’s version of the exchange between defendant and Mayo as credible but stated that “nothing Gordon said contradicts what the sergeant said.”

Defendant was convicted of various drug charges, including criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. He was sentenced to an aggregate term of 3 to 9 years, all terms to run concurrently. On June 2, 2004, defendant was released on parole and remained on parole at the time of the appeal. The Appellate Division affirmed defendant’s conviction. It found that there was no abuse of discretion in refusing to allow extrinsic collateral evidence for impeachment of defendant’s witness. A Judge of this Court granted defendant leave to appeal.

Discussion

The prosecutor’s duty to ensure a fair proceeding supercedes the concern for gaining a conviction (see Berger v United States, 295 US 78, 88 [1935]). Based on the timing of the disclosure and the degree of deprivation to the defendant, the remedy will vary (see People v Banch, 80 NY2d 610, 619 [1992] [new suppression hearing for Rosario violation]; People v Feerick, 93 NY2d 433, 450-451 [1999] [reopened hearing only, for Rosario violation concerning six documents]; People v Cortijo, 70 NY2d 868, 870 [1987] [no hearing required, defendant had opportunity to use the allegedly exculpatory information prior to trial]; Giglio v United States, 405 US 150, 155 [1972] [failure to disclose agreement between prosecutor and witness required a new trial for Brady violation]; People v Cwikla, 46 NY2d 434, 442 [1979] [reversal of convictions and new trial when prosecutor allowed witness to testify falsely that he had not received a promise of favorable consideration from the Parole Board in exchange for his testimony]; People v Pelchat, 62 NY2d 97, 105-107 [1984] [defective indictment dismissed with leave to prosecutor to move before Supreme Court for permission to resubmit the case to the grand jury]).

In People v Pelchat, this Court reversed a conviction even upon a plea of guilty because the prosecutor permitted an indictment although he knew the evidence before the grand jury was false. The rationale was that a prosecutor cannot allow an indictment upon evidence he knows to be false. In this case, not only was Detective Gordon under investigation for perjury at the time he testified before the grand jury, but also his testimony that he saw an exchange of money between defendant and a co-defendant was false.

The prosecutor has a duty to disclose Brady material whether there is a specific request, a general request or no request for it (United States v Bagley, 473 US 667, 682-683 [1985]). The duty to disclose does not change merely because defendant is unaware of the information at the time of the pretrial hearing (see, supra; see also Banch, 80 NY2d 610, 620 [1992], supra [“Disclosure of witnesses’ statements to facilitate effective cross-examination is a matter of basic fairness; the obligation should not be lightly treated or lightly excused”]). In fact, a Brady claim might arise if the government knew or should have known that the testimonial evidence presented by one of its witnesses was perjured (see Kyles v Whitley, 514 US 419, 433 [1995]). If the prosecution, having failed in its duty to disclose, compromised defendant’s constitutional rights and no confidence can be placed in the verdict, the proper remedy would be to suppress the evidence (see Kyles, supra; People v Cwikla, 46 NY2d 434, 441-442 [1979], supra).

Contrary to the prosecution’s position, it is not relevant that the evidence had a stronger bearing on a credibility issue than upon the guilt or innocence of defendant (see Crane v Kentucky, 476 US 683, 690-691 [1986]). What is relevant is whether evidence of the perjury is exculpatory to defendant (see Whitley, 514 US 419, 433 [1995], supra).

Evidence is exculpatory if it exonerates the accused, or points to the innocence of the accused (see Brady, supra). Defendant argues that evidence of Detective Gordon’s suspected perjury went to the frame-up defense offered by the defendant. Issues of credibility of a witness are relevant to the Confrontation Clause of the Sixth Amendment (see People v Savvides, 1 NY2d 554, 557-558 [1956]). However, in the case at bar, Detective Gordon’s credibility is intertwined with the guilt or innocence of defendant and raises Sixth Amendment concerns based on the Brady violation (see Giglio v United States, 405 US 150, 153-154 [1972], supra; People v Pelchat, 62 NY2d 97, 108 [1984], supra).

There were inconsistencies in Detective Gordon’s testimony at the suppression hearing and later at trial. At the suppression hearing, Detective Gordon testified that he saw the defendants exchange money. At trial, he testified that he only saw the defendants “touch hands.”

This Court need not accept defendant’s theory that the team of field officers were all corrupt and sought to protect Detective Gordon once he was under investigation for perjury in order to hold that the delayed disclosure of the perjury investigation of Detective Gordon constituted a Brady violation. Suppression is warranted because of the untimely disclosure alone, regardless of the offer and acceptance of a reopened suppression hearing (see Bagley, supra; United States v Agurs, 427 US 97 [1976]). The prejudice to defendant could not be undone, especially given that Sergeant Washington had already testified at trial to the events of April 12, 2001, and a reopened suppression hearing would merely give him the opportunity to reiterate his previous testimony.

In the court proceedings, with defense counsel present, the trial court stated: “This whole thing is of great concern to me. I told Mr. Heffner [prosecutor] particularly and also Mr. S[e]mmel [prosecutor] that I think it’s unforgiv[a]ble and outrageous that the district attorney’s office did not bring this to the trial court’s attention in this case before now.” Given this level of concern expressed by the trial court, in order to best protect defendant’s right of confrontation, the court should have suppressed the arrest evidence and any evidence that flowed therefrom (see Geaslen, 54 NY2d 510, 516 [1981], supra; Bagley, 473 US 667, 682-683 [1985], supra).

Previously, this Court has denied the prosecution a second bite at the apple when all the evidence was available at the time of the first hearing, and defendant would be prejudiced if the prosecution were allowed a second attempt at trial or a pretrial proceeding (see People v Havelka, 45 NY2d 636, 643-644 [1978]). The prosecution is afforded only one “full and fair” opportunity to present the evidence against defendant (see id. at 643). Thus, if defendant is allowed nothing more than a de novo suppression hearing, then the prosecution is given a second bite at the apple, which only further prejudices the defendant and rewards the prosecution for its failure to disclose material information.

Based upon the untimely disclosure, the fact that the knowledge was completely under the control of the prosecution and that the prosecution was fully aware of Detective Gordon’s suspected perjury at the time of the suppression hearing, the only remedy to cure the prejudice to defendant would be to suppress the arrest evidence (see Banch, 80 NY2d 610, 621 [1992], supra [new trial ordered for failure to fully disclose evidence in violation of duty to disclose under Rosario]).

The charges that arose based on the search warrant were proper. The search warrant was valid and the information obtained from the confidential informant was properly examined by a Darden hearing, and there is no cause to upset the verdict on the possession counts.

The trial court, however, should not have permitted the prosecution to present additional evidence at a reopened suppression hearing. Once Detective Gordon’s testimony was discredited, it should have considered defendant’s suppression motion in light of the credible evidence remaining. Because that evidence was insufficient as a matter of law to deny defendant’s motion, the court should have suppressed the prerecorded buy money, the only evidence supporting the two counts of criminal sale of a controlled substance. Without that, the People could not prove beyond a reasonable doubt that defendant sold the drugs to Mayo. We would, therefore, reverse the two sale convictions, but affirm defendant’s convictions for possession of a controlled substance, possession of a weapon and use of drug paraphernalia.

Judges Rosenblatt, Graffeo and Read concur with Judge R.S. Smith; Judge G.B. Smith dissents in part and votes to modify in a separate opinion in which Chief Judge Kaye and Judge Ciparick concur.

Order affirmed.

      . Detective Gordon was charged with official misconduct and, sometime after the trial of the defendant Robinson, the detective was acquitted of the charge.

      . In a letter dated July 24, 2002, the prosecutor disclosed that Sergeant Washington tested positive for marijuana on July 9 in a routine police department screening. Trial court denied a CPL 330.30 (3) motion for newly discovered evidence because the information about the drug test had no bearing on the evidence which was the subject of the hearing, nor was there a showing that Sergeant Washington had previously failed drug tests which would have compromised his credibility at the reopened Mapp/Dunaway hearing. In October 2002, Sergeant Washington was acquitted of the charge of official misconduct.

      . “This is not to suggest that prosecutors must disclose to the court each and every statement or bit of evidence or the results of every avenue of investigation. Indeed, there are many situations where the prosecution can fairly keep to itself what it alone possesses. But where, as here, there is in the possession of the prosecution evidence of a material nature which if disclosed could affect the ultimate decision on a suppression motion, and that evidence is not disclosed, such nondisclosure denies the defendant due process of law” (People v Geaslen, 54 NY2d 510, 516 [1981]).