author: Per Curiam. Rosenblatt, J. (dissenting).

text:
    [819 NE2d 197, 785 NYS2d 729]
    In the Matter of Richard A. Gross et al., Respondents, v Albany County Board of Elections, Respondent, and William M. Hoblock et al., Appellants. (And Another Related Proceeding.)
    Argued September 8, 2004;
    decided October 14, 2004

      POINTS OF COUNSEL

      DerOhannesian & DerOhannesian, Albany (Paul DerOhannesian II of counsel), for appellants.
    I. Invalidating qualified voters’ absentee ballots abrogates the right to vote. (Yick Wo v Hopkins, 118 US 356; Reynolds v Sims, 377 US 533; Griffin v Burns, 570 F2d 1065; United States v Classic, 313 US 299; United States v Mosley, 238 US 383; Shannon v Jacobowitz, 301 F Supp 2d 249; Bush v Gore, 531 US 98; Matter of Hopper v Britt, 203 NY 144; Matter of Powers v Donahue, 276 AD2d 157; Matter of Staber v Fidler, 65 NY2d 529.) II. Objections to the validity of an absentee application must be made before issuance of the absentee ballot to the voter. (Sheils v Flynn, 164 Misc 302, 252 App Div 238, 275 NY 446; Matter of Mondello v Nassau County Bd. of Elections, 6 AD3d 18; Griffin v Burns, 570 F2d 1065.) III. The Albany County Board of Elections acted ministerially when it issued the contested absentee ballots. (Matter of Wicksel v Cohen, 262 NY 446; Matter of Graziano v County of Albany, 309 AD2d 1062, 1 NY3d 507.) IV. Contested absentee ballots should be counted because of voters’ unavoidable absence from the county on election day.
    A. Joshua Ehrlich, Albany, for Richard A. Gross and another, respondents.
    I. The State Constitution and the Election Law require actual absence for an absentee ballot to be validly cast and canvassed. (Sheils v Flynn, 164 Misc 302, 252 App Div 238, 275 NY 446; Matter of Cristiano v Otsego County Bd. of Elections, 181 AD2d 941; Matter of Sherwood v Albany County Bd. of Elections, 265 AD2d 667; Matter of Staber v Fidler, 65 NY2d 529.) II. The affidavit on the ballot, as well as the application, controls whether the vote should be cast and canvassed. (Matter of Cristiano v Otsego County Bd. of Elections, 181 AD2d 941; Matter of Sherwood v Albany County Bd. of Elections, 265 AD2d 667.) III. The decisions of the Appellate Division departments have led to a fundamental change in the conduct of elections in this state. (Marks v Stinson, 19 F3d 873; Scheer v City of Miami, 15 F Supp 2d 1338; Matter of Staber v Fidler, 65 NY2d 529.) IV. Both answers admitted that the 2004 absentee ballots should not count. V. The opponents’ arguments are contradictory. Strict construction should be applied uniformly to all absentee ballots in this case.
   OPINION OF THE COURT

Per Curiam.

This appeal concerns the validity of certain absentee ballots cast during a special general election for two seats on the Albany County Legislature.

In April 2003, the Albany County Legislature’s redistricting plan was challenged in federal court. As a consequence of the litigation, the Albany County Board of Elections was enjoined from conducting the primary and general elections for particular districts of the Albany County Legislature that had been scheduled for fall 2003. A revised redistricting plan was accepted by the federal court in October 2003, but the resolution came too late to permit election officials to implement the new plan for the November elections. The United States Court of Appeals for the Second Circuit therefore determined that a special primary election would be conducted on March 2, 2004 (to coincide with the national primary elections), and ordered a special general election to be held “expeditiously thereafter” on terms established by the District Court on remittal (Arbor Hill Concerned Citizens v County of Albany, 357 F3d 260, 263 [2d Cir 2004]).

Consistent with the Second Circuit decision, the District Court issued a written order on February 2, 2004 dictating the manner in which the special primary and special general elections would be conducted. Pertinent to the issue on this appeal, the court directed that registered voters who had filed applications requesting absentee ballots for the fall 2003 elections would be sent absentee ballots for the special primary election scheduled for March 2, 2004 without having to file new applications. This accommodation was apparently made because there was insufficient time in the four-week period between the District Court order and the special primary to notify the public of the election, solicit and process absentee voter applications, and forward ballots to the affected voters as the New York Election Law ordinarily requires. With respect to the special general election—scheduled for April 27, 2004—the court ordered that “[t]he process for obtaining and counting absentee ballots . . . shall be governed by Article 8 of the New York Election Law.” Under article 8, in order to become qualified to cast an absentee vote, the voter must file an application requesting an absentee ballot that particularizes why the voter is unable to vote at the polls on election day.

The Albany County Board of Elections followed the District Court directives on absentee balloting with respect to the special primary election but failed to do so with respect to the special general election, instead forwarding an absentee ballot to any voter who had requested one during the fall 2003 elections. As a result, a number of voters who cast absentee ballots during the special general election did not file applications establishing that they were eligible to do so as the Election Law and the federal court order required.

At issue in this case are races in two Albany County legislative districts—the 26th and 29th districts. After the machine counts revealed that the electoral results were close, the affected candidates and their counsel met at the Albany County Board of Elections on May 5, 2004 to canvass the absentee, military and special ballots filed in those districts. In addition to other objections not relevant to this appeal, the candidates asserted that certain absentee ballots were invalid due to the Board’s noncompliance with the federal court order and article 8 of the Election Law.

Having timely lodged their objections before the Board, the candidates filed cross petitions in Supreme Court under Election Law § 16-106 raising the question whether the absentee ballots collected in violation of the court order and the Election Law could be counted. At the hearing, the testimony indicated that the Board’s failure to require absentee ballot applications arose from a misinterpretation of the federal court order, with no allegation of fraud or other intentional misconduct. Supreme Court held that the noncompliant absentee ballots should not be canvassed. A majority of the Appellate Division affirmed but two Justices dissented prompting an appeal as of right to this Court. We agree with the determination of the courts below that the absentee ballots collected in violation of both a federal court order and article 8 of the Election Law are invalid and we therefore affirm the order of the Appellate Division.

Article II, § 2 of the New York Constitution, adopted in 1919, states that “[t]he legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who, on the occurrence of any election, may be absent from the county of their residence or . . . may be unable to appear personally at the polling place because of illness or physical disability, may vote and for the return and canvass of their votes.” Thus, in New York, the right to vote by absentee ballot is purely a statutory right (see NY Const, art II, § 2; Election Law § 8-400).

The Legislature passed absentee voting legislation in 1920 (see L 1920, ch 875). New York was among the many states that “built in elaborate provisions to safeguard voter privacy and the integrity of the ballot” (J. Fortier and N. Ornstein, The Absentee Ballot and The Secret Ballot: Challenges for Election Reform, 36 U Mich JL Reform 483, 492-493 [2003]). The safeguards were adopted in recognition of the fact that absentee ballots are cast without the secrecy and other protections afforded at the polling place, giving rise to greater opportunities for fraud, coercion and other types of mischief on the part of unscrupulous partisans (id. at 492-493, 512-513).

Consistent with the limited circumstances contemplated in the Constitution, Election Law § 8-400 (1) provides that a voter may be qualified to cast an absentee ballot if he or she will be “unavoidably absent from the county of. . . residence” on election day, is “unable to appear personally at the polling place . . . because of illness or physical disability,” including due to treatment at a hospital, or is detained in jail awaiting trial or in prison after conviction for a nonfelony offense.

Like its predecessors, the current New York Election Law prescribes a detailed scheme for the issuance, collection and canvassing of absentee ballots. Prior to casting an absentee vote, the Election Law requires that the voter apply for an absentee ballot. Among other information, the written application must contain “[a] statement, as appropriate, that on the day of such election the applicant expects in good faith to be in one of the . . . categories” qualified to vote by absentee ballot (Election Law § 8-400 [3] [c]). The prospective voter must sign the application, certifying that the information in it is true and correct, and affirm an understanding “that this application WILL BE ACCEPTED FOR ALL PURPOSES AS THE EQUIVALENT OF AN AFFIDAVIT AND, IF IT CONTAINS A MATERIAL FALSE STATEMENT, SHALL SUBJECT ME TO THE SAME PENALTIES AS IF I HAD BEEN DULY SWORN” (Election Law § 8-400 [5]). Significantly, the Election Law does not allow automatic renewal of absentee ballot applications unless a voter is determined to be “permanently disabled” or is a “hospitalized veteran” (see Election Law § 8-400 [4]; § 8-404); only then are election officials permitted to send absentee ballots without a specific request.

Upon receipt of an absentee ballot application, the local board of elections determines “upon such inquiry as it deems proper whether the applicant is qualified to vote and to receive an absentee ballot,” which may include conducting an investigation into the accuracy of the information provided (Election Law § 8-402 [1], [2]). If the board finds the application acceptable, the absentee ballot will be forwarded to the voter (Election Law § 8-402).

The form of the absentee ballot is dictated by Election Law § 7-122. Under the statute, the ballot is enclosed in an envelope bearing an affirmation that must be signed by the voter, as follows:

“I do declare that I am a citizen of the United States, that I am duly registered in the election district shown on the reverse side of this envelope and I am qualified to vote in such district; that I will be unable to appear personally on the day of the election for which this ballot is voted at the polling place of the election district in which I am a qualified voter because of the reason given on my application heretofore submitted . . .
“I hereby declare that the foregoing is a true statement to the best of my knowledge and belief, and I understand that if I make any material false statement in the foregoing statement of absentee voter, I shall be guilty of a misdemeanor” (Election Law § 7-122 [8]).

Thus, at the time the completed ballot is forwarded to the board, the voter reaffirms that he or she continues to be unable to vote in person at the polls on the day of the election for the reason previously attested to in the application.

Once the ballot is returned to the board, it is subject to challenge by an inspector, watcher or any registered voter “upon the ground . . . that the voter was not entitled to cast an absentee . . . ballot,” among other grounds (see Election Law § 8-506 [1]). Following the election, the board meets “no more than ten days after a general election and no more than eight days after a special or primary election” to canvass absentee, military and other special ballots (Election Law § 9-209 [1] [a]; L 2003, ch 256, § 4 [for general elections, effective December 31, 2004, the time period was reduced from 13 days to 10]). The involved candidates, political parties and independent bodies may appoint watchers to attend the canvass who may object to the casting or canvassing of any ballot or the refusal to cast or canvass any ballot. Board inspectors are authorized to canvass a ballot if they find that “ministerial error” on the part of the board or its employees “caused such ballot envelope not to be valid on its face” (Election Law § 9-209 [2] [a] [2]). If no objection is lodged to the board’s decision to canvass or refuse to canvass a particular ballot during the canvass, that ballot cannot later be the subject of a judicial challenge (see Sheils v Flynn, 275 NY 446, 452 [1937]).

In the event of a timely objection, however, the board has three options: it may canvass the ballot, refuse to canvass the ballot, or, “[i]f the board cannot agree as to the validity of the ballot it shall set the ballot aside, unopened, for a period of three days at which time the ballot envelope shall be opened and the vote counted unless otherwise directed by an order of the court” (Election Law § 9-209 [2] [d]). Election Law § 16-106 (1) authorizes a summary judicial proceeding to resolve an objection, which proceeding was initiated by the candidates in this case to determine the validity of the absentee ballots. Like the board, in such a proceeding a court is empowered to overlook certain ministerial errors appearing on the face of the ballot envelope.

The primary objective of this comprehensive statutory scheme is to ensure fair elections by protecting the integrity of the ballot. We have previously recognized in the context of the Election Law that where, as here, the Legislature “erects a rigid framework of regulation, detailing . . . specific particulars,” there is no invitation for the courts to exercise flexibility in statutory interpretation (Matter of Higby v Mahoney, 48 NY2d 15, 20 n 2 [1979]). Rather, when elective processes are at issue, “the role of the legislative branch must be recognized as paramount” (id. at 21). “Broad policy considerations weigh in favor of requiring strict compliance with the Election Law . . . [for] a too-liberal construction . . . has the potential for inviting mischief on the part of candidates, or their supporters or aides, or worse still, manipulations of the entire election process” (Matter of Staber v Fidler, 65 NY2d 529, 534 [1985]). Strict compliance also “reduces the likelihood of unequal enforcement” {id.). The sanctity of the election process can best be guaranteed through uniform application of the law.

That being said, however, there are instances where inconsequential deviations from the letter of the law will not be fatal. For example, in Matter of Weinberger v Jackson (19 NY2d 995 [1967], affg on op below 28 AD2d 559, 559 [2d Dept 1967]), this Court held that ballots invalidated because voters marked the parallelogram next to the candidate’s name (the party emblem) instead of the voting square should have been counted, adopting the reasoning that “[t]he right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever reasonably possible . . . transcends technical errors, particularly when induced” by a confusing ballot. There is no question that the “object of election laws is to secure the rights of duly qualified electors,” not to frustrate them by posing technical obstructions that bear no relationship to the policies underlying the statutes (People ex rel. Hirsh v Wood, 148 NY 142, 147 [1895]).

Absentee voting serves the laudable purpose of opening the voting process to a larger electorate but there are dangers inherent in the system that warrant adherence to article 8’s legislative prescriptions. Here, although we sympathize with the voters in this case who presumed they were submitting valid absentee ballots, the Board’s error simply cannot be characterized as technical, ministerial or inconsequential because it was central to the substantive process by which voters are determined to be qualified to cast absentee ballots. The Legislature’s carefully crafted procedure for ensuring the validity of absentee votes was circumvented by the Board’s decision to forward absentee ballots to voters who had not applied for them. These voters never articulated why they were not able to vote at the polls on April 27, 2004, the day of the special general election, as article 8 of the Election Law and the federal court order required. The Board therefore had no basis to conclude that these voters were qualified to cast absentee votes. In addition, as a result of the Board’s actions, the absentee ballot rules were not applied uniformly to all who voted in the special general election—some voters were required to comply with the application requirement while others (those who cast the ballots at issue) were excused from doing so.

Nor is this a case where a minor alteration of procedure can be viewed as substantial compliance with statutory directives. As a result of the failure to adhere to Election Law § 8-400, several other provisions of the Election Law were also disregarded, including the duty to assess the validity of applications before forwarding absentee ballots (see Election Law § 8-406) and the requirement that voters reaffirm under penalty of criminal prosecution that they are unable to vote at the polls on the day of the election for the reason indicated in the application (see Election Law § 7-122 [8]). Hence, despite the absence of fraud or intentional misconduct, the fact remains that the voters who cast the ballots at issue were not determined to be “duly qualified electors” under the absentee ballot scheme, which distinguishes this case from many of those cited by appellants and the dissent. For example, the dissent relies on People ex rel. Hirsh v Wood (148 NY 142 [1895]), a case decided long before absentee voting was authorized in New York and which involved a post-election challenge to the form of the ballot. There, the clerk who drew up the ballot listed candidates on a minor party line even though they had not been nominated by that party. After the election, an opposing candidate sought to invalidate all the votes cast on that party line at the polls on election day. We declined to void the votes, noting that there was no question but that the votes had been cast by “duly qualified electors.”

The dissent suggests that the challenged absentee ballots should be canvassed despite the Board’s departure from the qualification process because the voters who cast the ballots were innocent of any wrongdoing. This is certainly true in the sense that the voters’ reliance on the Board’s mistake was understandable—but this same rationale could be applied virtually any time a board fails to comply with statutory directives governing voting. Reliance on board actions or directives will almost always be reasonable since few voters have sufficient familiarity with the Election Law to catch an error and most have little reason to question voting procedures. Thus, an exception predicated on voter innocence would swallow the rule, effectively relieving election officials of their obligation to adhere to the law. For these reasons, we agree with the Appellate Division majority that to overlook a substantive error of this magnitude would invite future impermissible deviation from statutory requirements that have been devised to ensure fair elections.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Rosenblatt, J. (dissenting).

The two most important interests of the Election Law are closely balanced in this case: on the one hand, the need for rigorous application of rules that govern elections; on the other, letting the voter’s vote count. I appreciate the majority’s dedication to enforcing rules designed to prevent irregularities. Experience has shown that too many elections have been touched, if not infused, by fraud, and that we need rules to keep the process honest. To be sure, some rules require the most stringent enforcement if the system is to function. Others, however, can and should tolerate some flexibility. This is particularly so when, as here, the strict application of the rule does not further the Election Law’s objectives.

We have, at times, construed the Election Law’s rules to disenfranchise voters. When we did, it was because we felt that on balance a more permissive interpretation would threaten the process or future elections. Thus, while I do not see the majority’s opinion as grudging or as evincing a hidebound, technical character, the scales here tip in favor of the voter.

The voters did exactly as they were told—not by amateurs or partisan functionaries, but by the very governmental body whose job it is to interpret and apply the Election Law in all of its complexity. If the majority is correct, the voters, to have their votes counted, would have had to send their absentee ballots back to the Election Board and tell the Board that it misread both the Election Law and a federal court order. I can think of no voter endowed with the sophistication and audacity required to issue such a rebuke. This case is unusual, if not unique, in that the voters are being denied their vote for having followed the protocol established by the experts lawfully charged with running the election.

In this respect, the situation of the voters here should contrast with that of candidates who commit technical violations of the Election Law. In a significant number of cases, we have invalidated designating petitions when candidates failed to satisfy the requirements of the statute. When a candidate falls short of the mark and is expelled on technical grounds, it is no occasion for rejoicing. After all, the voters are being denied a choice. But candidates know, or should know, the perils of the Election Law. If they do not comply with its terms, we might say they bear the fault. We can take no such comfort here. These voters were entirely innocent and had no reason to imagine that their votes were vulnerable.

The purpose of the Election Law’s rules is to foster order and defeat fraud. If the Board of Elections were constituted by a single member, one might suspect that, for political gain, that partisan official coüld be tempted to ignore or misapply the federal court order. The Board, however, is bipartisan. There is not a hint of fraud here. More importantly, in a two-party contest, there is virtually no possibility of any fraud when Commissioners—who are political rivals—both agree in good faith as to how absentee balloting should be administered.

Finally, today’s decision conflicts with both Election Law § 16-106 (1) and our venerable precedent, People ex rel. Hirsh v Wood (148 NY 142 [1895]).

L

To deter fraud, Election Law § 8-400 (5) provides that statements made in an application for an absentee ballot “shall be accepted for all purposes as the equivalent of an affidavit” and that “a material false statement shall subject the person signing it to the same penalties as if he had been duly sworn.” Likewise, Election Law § 7-122 (8) requires absentee voters to subscribe to an oath on the ballot, affirming that they are unable to appear at the polling place on election day.

As the Court observes, however, the election at issue does not implicate the statute’s concern with fraud or intentional misconduct. In affirming Supreme Court’s decision to invalidate the ballots, the Appellate Division expressly found that the “voters were without fault.” (10 AD3d 476, 479 [2004].) No one doubts this. By all indications, when they applied for absentee ballots in the fall of 2003, the absentee voters truthfully stated that they would be unavoidably absent from Albany County.

Moreover, there is no evidence to suggest that, by following the format established by the Board for the special general election, the voters were acting fraudulently. On the contrary, the record reveals that a substantial majority (15 of 27) of the contested ballots were postmarked from outside Albany County. That the remaining 12 ballots originated from within the County is, at best, inconclusive evidence of an irregularity. An otherwise proper absentee ballot may be cast and canvassed, even if the voter is present in the county of residence on election day (see Matter of Sherwood v Albany County Bd. of Elec tions, 265 AD2d 667 [3d Dept 1999]). Furthermore, because their ballots were postmarked 11 to 15 days before the election, these 12 voters may well have been unavoidably absent from Albany County on election day.

To be sure, the voters here departed from the standard absentee ballot application procedures, but only because the Board told them that was the way to do it. Pursuant to the District Court’s order, the Board mailed absentee ballots for the special primary election to all voters who had qualified for such ballots in the original general election. When, a month later, the voters received absentee ballots for the special general election, they had no reason to imagine that their ballots would be challenged.

IL

A faithful reading of the Election Law indicates that we should not disenfranchise these voters for the Board’s good faith mistake. In pertinent part, Election Law § 16-106 (1) provides:

“If the court determines that the person who cast such ballot was entitled to vote at such election, it shall order such ballot to be cast and canvassed if the court finds that ministerial error by the board of elections or any of its employees caused such ballot envelope not to be valid on its face.”

The distinction between “ministerial” and “discretionary” acts may be muddied by the particularities of a given case, but in the abstract, the terms describe discrete polarities of official conduct. As Chief Judge Pound explained in Matter of Wicksel v Cohen (262 NY 446, 449 [1933]), “[t]he distinction between ministerial and judicial acts is that where the law prescribes the rule to be followed so as to leave nothing to the exercise of judgment or discretion, the act is a ministerial act.” By contrast, “where the act involves the exercise of judgment or discretion in determining whether the duty exists, the act is judicial” (id.).

Under this framework, the Board’s error was quintessentially ministerial. The distribution of absentee ballots is not an activity that requires the exercise of discretion. Election Law § 8-402 unambiguously requires boards of elections to determine whether absentee ballot applicants meet the eligibility criteria set forth by Election Law § 8-400. Election Law § 8-406 further requires boards of elections to mail absentee ballots to all applicants who satisfy the section 8-400 criteria. Here, the record reveals that the Commissioners thought that the federal court order obligated them to mail absentee ballots for the special general election to every voter who had applied for such a ballot in the fall of 2003. The Board’s bipartisan departure from the statutorily prescribed protocol for the issuance of absentee ballots was not so much a willful exercise of independent discretion as a mistaken attempt by the Commissioners to follow the federal court order, as they understood it.

¡IL

Even if the Board’s error were not strictly ministerial, this Court’s decisional law requires counting the contested ballots. In People ex rel. Hirsh v Wood (148 NY 142 [1895]), we considered the validity of ballots with a “latent defect” (id. at 146). Specifically, a county clerk charged with printing the ballots had inserted into them, without authority, the names of candidates who had not been nominated by their party. Writing for the Court, Chief Judge Andrews stated:

“We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake or even the willful misconduct of election officers in performing the duty cast upon them. The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult” (id. at 146-147 [emphasis added]).

The majority has attempted—unsuccessfully in my view—to distinguish Hirsh from the case before us. It is incontestable, however, that if, under Hirsh, votes must be counted when there is outright fraud by election officials, surely they should be counted when a bipartisan board of elections makes an honest mistake.

As this Court observed in Matter of Staber v Fidler (65 NY2d 529, 534 [1985]), a lax construction of the Election Law may invite mischief by candidates or “manipulations of the entire election process,” but too strict a construction “beyond that necessary for the effectuation of those policies can also lead to injustice.” Accordingly, I respectfully dissent.

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

Order affirmed, without costs.

      . Federal courts have held that they have the equitable power under the Voting Rights Act of 1965 (42 USC § 1973) to order special elections to remedy apportionment violations and, in doing so, that they may dictate the procedures under which those elections are to be conducted (see Arbor Hill Concerned Citizens v County of Albany, 357 F3d at 262-263). The impact of the District Court’s decision to order the Board to forward absentee ballots to voters in the special primary election without the specific application required under Election Law § 8-400 is not before us in this Election Law § 16-106 proceeding which challenges only the ballots cast in the special general election.

      . It appears that the decision to allow absentee voting was not without controversy. A New York Times article urged that the constitutional amendment authorizing the Legislature to enact an absentee voting scheme “ought to be beaten at the polls,” characterizing absentee voting as “a doubtful and even dangerous remedy” where “[t]he danger of fraud is palpable” (Four Amendments, New York Times, Oct. 15, 1919, at 16).

      . The dissent’s reliance on the “ministerial error” provision in Election Law § 16-106 is misplaced. By its terms, the statute authorizes a court to overlook a “ministerial error” that “caused such ballot envelope not to be valid on its face” (Election Law § 16-106 [1] [emphasis added]), the same power possessed by the board (see also Election Law § 9-209 [2] [a] [2]). The absentee ballots in this case were not invalidated due to facial defects on the ballot envelopes. Moreover, as used in this context, the phrase “ministerial error” suggests a clerical or other inconsequential mistake comparable to the situation in Matter of Carney v Niagara County Bd. of Elections (8 AD3d 1085 [4th Dept 2004] [where the Board failed to date/time-stamp a military ballot envelope that was timely filed]). In contrast, here the ballots were invalidated due to a substantive deficiency impheating voter qualification. Furthermore, it appears that the dissent is using the concepts of “ministerial error” and “ministerial duty” interchangeably; only the latter is addressed in Matter of Wicksel v Cohen (262 NY 446 [1933]) and we believe there are meaningful distinctions. But even if “ministerial error” means what the dissent says it means, the error here was not ministerial because it involved the Board’s exercise of judgment—the interpretation and implementation of a federal court order in the context of a special election—and affected the manner in which that body exercised its statutory obligation to determine absentee voter eligibility (see Election Law § 8-402). Although the Board performs many ministerial functions, this was not one of them.

        . We reject the appellants’ suggestion that the voters’ prior assertions made in their fall 2003 absentee ballot applications should be carried forward and applied to this election. Putting aside the fact that this is not what the statute or court order required, at the time the prior ballots were requested, it was unclear whether there would be a special general election, much less the date of that election. It would therefore have been impossible for these voters (who were not “permanently disabled” or “hospitalized veterans”) to have made a good faith statement of their inability to vote at the polls on the day of the special general election.

      . After Hirsh was decided, statutes were passed that provide for public inspection of ballots prior to the election so that errors can be detected and challenges to the form of the ballot resolved before votes are cast (see Election Law §§ 7-128, 16-104).

      . Deputy Commissioner Karen Shea testified that the Board issued absentee ballots for the special general election to everyone who had applied for such ballots in September and October of 2003 because “that’s what we thought when we read the order from the judge. That’s how we interpreted it. . . .” Asked how the Commissioners came to this conclusion, she responded, “I think we went over it in a meeting, that all four of us sat down and we looked it [the District Court order] over, and that’s what we thought—you know.” John Graziano, a Commissioner, testified that the “decision was [made] in a meeting with the two deputies and the two commissioners in trying to interpret what the judge was asking us to do, and that’s what we decided to do. Then we followed up and did it.”

      . See also Griffin v Burns, 570 F2d 1065 (1st Cir 1978) (holding that when a board of elections had no authority to issue absentee ballots for a special primary election, but when the issuance of such ballots followed a long-standing practice, it was unconstitutional to invalidate the absentee ballots cast by voters).


source: Caselaw Access Project

author: Rosenblatt, J. R.S. Smith, J. (concurring). Read, J. (dissenting).

license: Public Domain

text:
    [819 NE2d 634, 786 NYS2d 116]
    The People of the State of New York, Respondent, v Kenneth H. Payne, Appellant.
    Argued September 9, 2004;
    decided October 19, 2004

      POINTS OF COUNSEL

      Legal Aid Society of Suffolk, Inc., Appeals Bureau, Riverhead (Robert B. Kenney and Robert C. Mitchell of counsel), for appellant.
    I. It was reversible error for the trial court to have submitted the count of depraved indifference murder to the jury, where no reasonable view of the evidence can support the theory that the shooting of the victim at point-blank range with a shotgun was reckless. (People v Wall, 34 AD2d 215, 29 NY2d 863; People v Gonzalez, 302 AD2d 870, 99 NY2d 659; People v Roe, 74 NY2d 20; People v Register, 60 NY2d 270; People v Sanchez, 98 NY2d 373; People v Hafeez, 100 NY2d 253.) II. Since Penal Law § 125.25 (2), depraved indifference murder, is impermissibly vague in violation of both the New York State and the United States Constitutions, appellant’s conviction for murder in the second degree should be reversed. (People v Register, 60 NY2d 270; People v Roe, 74 NY2d 20; People v Sanchez, 98 NY2d 373; People v Hafeez, 100 NY2d 253.) III. The trial court erred in denying appellant’s request to charge the jury on the defense of justification. (People v Watts, 57 NY2d 299; People v Wesley, 76 NY2d 555; People v Goetz, 68 NY2d 96; People v Daniels, 248 AD2d 723; People v Smith, 234 AD2d 484; People v Padgett, 60 NY2d 142.)

      Kenneth H. Payne, appellant pro se.
    I. (A) The People’s evidence failed, as a matter of law, to establish a prima facie case of depraved indifference murder. (B) The People’s evidence failed, as a matter of law, to establish Kenneth Payne’s guilt beyond a reasonable doubt. (People v Sanchez, 98 NY2d 373; People v Russell, 91 NY2d 280; People v Fenner, 61 NY2d 971; People v Register, 60 NY2d 270; People v Poplis, 30 NY2d 85; People v Reed, 40 NY2d 204; People v Santos, 38 NY2d 173.) II. The trial court’s refusal to charge the defense of justification to the jury deprived Kenneth Payne of his right to a fair trial. (People v McManus, 67 NY2d 541; People v Padgett, 60 NY2d 142; People v Steele, 26 NY2d 526; People v Asan, 22 NY2d 526; People v Wag

      man, 99 AD2d 519; People v Miller, 39 NY2d 543; Matter of Y.K., 87 NY2d 430; People v Goetz, 68 NY2d 96; Davis v Strack, 270 F3d 111.) III. The prosecutor committed reversible error in his summation by characterizing Kenneth Payne as a liar, stating the defense was a fabrication and by vouching for his own case. (People v Shanis, 36 NY2d 697; People v Whalen, 59 NY2d 273; People v Conyers, 52 NY2d 454; People v Spinelli, 214 AD2d 135; People v Wagman, 99 AD2d 519; People v Rosa, 108 AD2d 531; People v Jackson, 143 AD2d 363; People v Negron, 161 AD2d 537; People v Walters, 251 AD2d 433; People v Pelchat, 62 NY2d 97.) IV. Statements Kenneth Payne made to the police, while in custody, were elicited in violation of his rights under US Constitution Amendments V, VI and XIV and NY Constitution, article I, § 6. (People v Soto, 183 AD2d 926; People v Smith, 150 AD2d 738; People v Huffman, 41 NY2d 29; People v Shivers, 21 NY2d 118; People v Davis, 224 AD2d 541; Miranda v Arizona, 384 US 436; People v Quarles, 58 NY2d 664; People v Chapple, 38 NY2d 112; People v Bethea, 67 NY2d 364; People v Beames, 149 AD2d 817.)

      Thomas J. Spota, District Attorney, Riverhead (Steven A. Hovani and Anne E. Oh of counsel), for respondent.
    I. Defendant’s conviction of depraved indifference murder is proper in all respects. The jury’s unanimous guilty verdict should, therefore, remain undisturbed. (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56; People v Finger, 95 NY2d 894; People v Norman, 85 NY2d 609; People v Hines, 97 NY2d 56; Jackson v Virginia, 443 US 307; People v Rossey, 89 NY2d 970; People v Contes, 60 NY2d 620; People v Ford, 66 NY2d 428; People v Bleakley, 69 NY2d 490.) II. The trial court’s refusal to charge the defense of justification was proper. (People v Butts, 72 NY2d 746; People v Watts, 57 NY2d 299; People v Steele, 26 NY2d 526; People v Reynoso, 73 NY2d 816; People v Collice, 41 NY2d 906; People v Adams, 259 AD2d 299.) III. The prosecution’s summation was fair comment on the trial evidence and defense counsel’s closing argument. (People v Utley, 45 NY2d 908; People v Cicchetti, 44 NY2d 803; People v Galloway, 54 NY2d 396; People v Morgan, 66 NY2d 255; Williams v Brooklyn El. R.R. Co., 126 NY 96; People v Montez, 203 AD2d 216; People v Ortiz, 2 AD3d 125; People v Walters, 251 AD2d 433; People v Smart, 96 NY2d 793; People v Guzman, 76 NY2d 1.) IV. Evidence of defendant’s oral, written and videotaped statements, as well as the gun seized at the scene, were properly admitted at trial. (People v Leonti, 18 NY2d 384; People v Winchell, 64 NY2d 826; People v Yukl, 25 NY2d 585; People v Prochilo, 41 NY2d 759; People v

      Miguel, 53 NY2d 920; People v Friola, 11 NY2d 157; People v Brown, 96 NY2d 80; Horton v California, 496 US 128; People v Burr, 70 NY2d 354; People v Herring, 179 AD2d 549.)
   OPINION OF THE COURT

Rosenblatt, J.

We once again address the crime of depraved indifference murder and where it fits within the Penal Law’s statutory framework. In the appeal before us, defendant, armed with a 12-gauge shotgun, went to the deceased’s home and shot him at point-blank range. Having acquitted defendant of intentional murder—the first count in a two-count indictment—the court convicted defendant of depraved indifference murder after the court improperly allowed the jury to consider that charge.

The Appellate Division affirmed, and a Judge of this Court granted leave to appeal. We reverse. Defendant did not commit depraved indifference murder.

I.

Defendant and the deceased, Curtis Cook, had been friends for nearly 20 years, but their relationship began to sour in 1998. In March of that year, Cook was arrested and accused of sexually abusing an eight-year-old girl, a playmate of defendant’s daughter. Although defendant knew the girl and her father, he remained friendly with Cook.

On April 27, 1998, defendant drank large amounts of alcohol at a local bar, while Cook drank at home. When defendant’s girlfriend arrived at the tavern to take him home, she told defendant that Cook telephoned her to complain about defendant’s dog. This infuriated defendant, because Cook had been belligerent toward the girlfriend and defendant had warned him never to communicate with her.

Following a telephone conversation with Cook, defendant went to his closet and took out a 12-gauge shotgun. He referred to the weapon as an “elephant gun.” With the loaded weapon in hand, defendant walked next door to confront Cook. After the two exchanged words, defendant shot Cook at point-blank range, killing him. The wound was below the heart and just above the navel. Defendant admitted the shooting and presented a justification defense, which by its verdict the jury rejected.

II.

This Court’s recent holdings in People v Gonzalez (1 NY3d 464 [2004]), People v Hafeez (100 NY2d 253 [2003]) and People v Sanchez (98 NY2d 373 [2002]) have made it clear that depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York. While we have identified instances in which a killing could qualify as depraved indifference murder, a point-blank shooting is ordinarily not one of them.

Pursuant to Penal Law § 125.25 (2), a person is guilty of depraved indifference murder when “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” In People v Gonzalez (1 NY3d 464 [2004]), the Court reversed a depraved indifference murder conviction for legal insufficiency. There, the defendant kicked in the door of a barber shop, pulled a gun from his waistband and, at close range, shot the victim several times. We held that because it evinced an intent to kill, a homicide of that type could not constitute depraved indifference murder. Indifference to the victim’s life, we explained, contrasts with the intent to take it. Here, as in Gonzalez, the evidence established defendant’s intent to kill.

The prosecution seeks to distinguish Gonzalez, asserting that here defendant’s conduct was not “overtly intentional” in that he did not plan or contrive the shooting, and that the jury could have concluded that the homicide was merely instinctive—the result of a reckless act in arming himself before confronting Cook. This theory is flawed and reveals a fundamental misunderstanding of the concepts underlying depraved indifference murder.

To begin with, intentional murder does not require planning or contrivance. The premeditation element was eliminated in the 1967 Penal Law (see People v Patterson, 39 NY2d 288, 298 [1976]). Secondly, by the prosecution’s theory, homicides could be routinely categorized and sustained as depraved indifference murder whenever the defendant brought a weapon to a contentious confrontation. Inasmuch as it is “reckless” to arm oneself under those circumstances or to wield a weapon carelessly (the argument goes) any homicide that results could qualify as depraved indifference murder. That is not the law. If it were, every homicide, particularly intentional ones, would be converted into depraved indifference murder.

Moreover, the prosecutor’s position is based on the erroneous notion that the wanton disregard for human life inherent in every intentional homicide amounts to depraved indifference murder. In Gonzalez, this Court rejected that contention, holding that the reckless conduct must be “so wanton, so deficient in a moral sense of concern, so devoid of regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another” (1 NY3d at 469, quoting People v Russell, 91 NY2d 280, 287-288 [1998]).

The use of a weapon can never result in depraved indifference murder when, as here, there is a manifest intent to kill. In arguing that a point-blank shooting may constitute depraved indifference murder, the prosecution relies on People v Sanchez (98 NY2d 373 [2002]). In People v Hafeez (100 NY2d 253, 259 [2003]), however, the Court rejected the argument the prosecution makes here. The Court emphasized that Sanchez “involved the sudden shooting of a victim by a defendant who reached around from behind a door and fired into an area where children were playing, presenting a heightened risk of unintended injury.” (Id.)

This Court thus differentiated cases like the one before us (and Gonzalez) from homicides in which a defendant lacking the intent to kill (but oblivious to the consequences and with depraved indifference to human life) shoots into a crowd or otherwise endangers innocent bystanders. People v Jernatowski (238 NY 188 [1924]) is a prominent example of this genre. There, the defendant fired shots into a house, killing the wife of a man with whom he had a confrontation. Similarly, in People v Fenner (61 NY2d 971 [1984]), defendant fired into a fleeing crowd. In People v Russell (91 NY2d 280 [1998]), defendant shot and killed an innocent bystander during a gun battle and in People v Gomez (65 NY2d 9 [1985]), defendant struck a child with a car, accelerated, and killed another child while speeding on crowded sidewalks. The case before us involves a crime directed at a single individual—and, moreover, an intentional killing—as opposed to the generalized depraved indifference exemplified in the above cases.

We have recognized another species of depraved indifference murder in which the acts of the defendant are directed against a particular victim but are marked by uncommon brutality— coupled not with an intent to kill, as in Gonzalez and the case before us, but with depraved indifference to the victim’s plight. Instances include where, without the intent to kill, the defendant inflicted continuous beating on a three-year-old child (see People v Poplis, 30 NY2d 85 [1972]), fractured the skull of a seven-week-old baby (see People v Bryce, 88 NY2d 124 [1996]), repeatedly beat a nine year old (see People v Best, 85 NY2d 826 [1995]) or robbed an intoxicated victim and forced him out of a car on the side of a dark, remote, snowy road partially dressed and without shoes in subfreezing temperatures (see People v Kibbe, 35 NY2d 407 [1974]; see also People v Mills, 1 NY3d 269 [2003]).

As the drafters of the Penal Law put it, depraved indifference murder is “extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions’ cage in the zoo” (Denzer and McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 125.25, at 235 [1967]).

Thus, if a defendant fatally shoots the intended victim once, it could be murder, manslaughter in the first or second degree or criminal negligence (or self-defense), but not depraved indifference murder. Moreover, it should be obvious that the more the defendant shoots (or stabs or bludgeons) the victim, the more clearly intentional is the homicide. Firing more rounds or inflicting more wounds does not make the act more depravedly indifferent, but more intentional. Absent the type of circumstances in, for example, Sanchez (where others were endangered), a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.

Lastly, and contrary to the dissent, defendant has preserved his claim that he did not commit depraved indifference murder. The dissent relies on People v Hines (97 NY2d 56, 61 [2001]), where the trial court “promptly denied” a motion to dismiss made at the close of the People’s case. Hines does not govern the appeal before us. There, we did not address the issue of preservation where, as here, a trial court reserved decision on a CPL 290.10 motion. When a trial court denies such a motion at the close of the People’s case, a defendant who thereafter introduces proof waives the right to have the court consider the motion solely on the basis of the People’s evidence (see Hines, 97 NY2d at 61). Where, however, the court has reserved decision, the defendant has preserved a claim of insufficiency, and the trial court would then rule on the CPL 290.10 motion as if the motion were made at the close of all the evidence. We decline to expand Hines and elevate preservation to a formality that would bar an appeal even though the trial court, aware that the motion was pending, had a full opportunity to review the issue in question.

Defendant did not commit depraved indifference murder within the meaning of the statute. Therefore, the order of the Appellate Division should be reversed and the indictment dismissed.

R.S. Smith, J. (concurring).

I join the Court’s opinion, though I appreciate the force of the dissent’s argument that it is difficult to distinguish People v Hines (97 NY2d 56 [2001]). In joining the majority, I am influenced to some degree by my doubt that the rule of Hines is a wise one. I think the majority is correct in giving Hines a restrictive reading.

Read, J. (dissenting).

Defendant plainly failed to preserve the claim that his conviction of depraved mind murder is not supported by legally sufficient evidence. At the close of the People’s case, defendant moved for a trial order of dismissal of the depraved mind murder count of the indictment (see CPL 290.10). The trial court’s “fail[ure]” to grant this motion does not present an “issue of law” within our scope of review because “defendant waived review of the mid-trial decision by testifying himself’ (People v Hines, 97 NY2d 56, 61 [2001], citing People v Kirkpatrick, 32 NY2d 17, 21 [1973], appeal dismissed 414 US 948 [1973]). “[I]n the absence of a motion to dismiss at the close of all the evidence” (People v Hines, 97 NY2d at 62), defendant has not preserved a claim that, “viewing the evidence at trial in its entirety, the People failed to establish [his] guilt [of depraved mind murder] beyond a reasonable doubt” (id. at 61-62). Accordingly, we respectfully dissent from the Court’s reversal of defendant’s conviction.

Preservation is not simply a “formality” (majority op at 273). Under the State Constitution, this Court, with limited exceptions not applicable here, can consider only “questions of law” (NY Const, art VI, § 3 [a]; see also CPL 470.35). Generally, a question of law is an issue that was preserved by a sufficiently specific and timely objection at trial (see CPL 470.05 [2]; see also People v Gray, 86 NY2d 10, 19 [1995]). In light of our decision in Hines, defendant does not present us with a preserved question of law on this appeal.

The defendant in Hines moved for a trial order of dismissal following the close of the People’s case. The trial court denied the motion, and the defendant proceeded to present evidence. Following a jury verdict of conviction, the trial court revisited the previously denied motion to dismiss in the guise of addressing a motion to set aside the verdict under CPL 330.30 (1). For reasons that should foreclose us from reviewing defendant’s claim here, we held in Hines that “the trial court lacked jurisdiction to address the sufficiency of the People’s case-in-chief’ (People v Hines, 97 NY2d at 61).

CPL 330.30 (1) reflects the constitutional limitation on our jurisdiction to questions of law. This statute allows a trial court to set aside a verdict for “[a]ny ground appearing in the record which . . . would require a reversal or modification of the judgment as a matter of law by an appellate court” (CPL 330.30 [1] [emphasis added]). In other words, “[u]nder this statutory standard, an insufficiency argument may not be addressed unless it has been properly preserved for review during the trial” (People v Hines, 97 NY2d at 61). Significantly, we concluded in Hines that, “[b]ecause defendant waived review of the mid-trial decision by testifying himself and presenting the testimony of other witnesses . . . , this was not an issue of law that could properly be adjudicated in a CPL 330.30 motion” (id.).

Just as the trial court in Hines “lacked jurisdiction to address the sufficiency of the People’s case-in-chief in the context of the CPL 330.30 motion” (id.), we have no jurisdiction here to entertain a claim that the People did not present evidence legally sufficient to establish depraved mind murder. Quite simply, once a defendant puts on a case, a trial court’s “fail-Cure]” (id.) to grant a CPL 290.10 motion made at the close of the People’s case does not present a question of law (see id.).

The trial court in Hines “promptly denied defendant’s CPL 290.10 motion at the close of the People’s case-in-chief’ (id.), while here, the trial court reserved decision. Our holding in Hines, however, relied on People v Kirkpatrick (32 NY2d 17 [1973], supra), where “we . . . held that ‘a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People’s case, proceeds with the risk that he will inadvertently supply a deficiency in the People’s case’ ” (People v Hines, 97 NY2d at 61, quoting People v Kirkpatrick, 32 NY2d at 21 [emphasis added]). In Kirkpatrick, as was the case here, the trial court’s “fail[ure]” (People v Kirkpatrick, 32 NY2d at 21) to grant a midtrial dismissal motion resulted from a reservation of decision (see id.). Thus, whether a trial court “decline[s] to grant” (People v Hines, 97 NY2d at 61) a dismissal motion by outright denial, as in Hines, or by reserving decision, as occurred here and in Kirkpatrick, the effect is the same: when a defendant presents a case, the sufficiency of the People’s case and, concomitantly, the propriety of a trial court’s “fail[ure]” to grant a midtrial dismissal motion, does not present a question of law.

Several CPL provisions supply additional support for the conclusion that we lack jurisdiction to review defendant’s claim under the circumstances here. CPL 290.10 (1) allows for a defendant to move for a trial order of dismissal either “[a]t the conclusion of the people’s case or at the conclusion of all the evidence.” Thus, CPL 290.10 contemplates that when a defendant presents a case, the defendant must make a motion to dismiss, or at least renew an earlier motion on which the trial court has reserved decision, “at the conclusion of all the evidence” (CPL 290.10 [1]; see also People v Hines, 97 NY2d at 61-62).

CPL 290.10 affords a trial court the discretion either to grant a dismissal motion immediately or, alternatively, to “reserve decision on the motion until after the verdict has been rendered and accepted by the court” (CPL 290.10 [1]), which is what happened here. “Where the court has reserved decision and the jury thereafter renders a verdict of guilty, the court shall proceed to determine the motion upon such evidence as it would have been authorized to consider upon the motion had the court not reserved decision” (CPL 290.10 [l]).

If a defendant does not present a case, the only evidence adduced at trial is the People’s proof. When a defendant presents a case, however, the equation changes, and the trial court is not “authorized to consider” only the sufficiency of the People’s evidence. Rather, a motion to dismiss must be predicated on “the evidence at trial in its entirety” (People v Hines, 97 NY2d at 61). As we recognized in Hines, “Consistent with the overall truth-seeking function of a jury trial, the rationale underlying this rule is that a reviewing court should not disturb a guilty verdict by reversing a judgment based on insufficient evidence without taking into account all of the evidence the jury considered in reaching that verdict, including proof adduced by the defense” (id.).

The directive in CPL 290.10 for a defendant who presents proof to move to dismiss at the “conclusion of all the evidence” dovetails with the purposes served by the preservation standards of CPL 470.05 (2). Both reflect the solicitude for the “truth-seeking function of a jury trial” voiced in Hines. Indeed, requiring a sufficiently detailed and “timely objection alerts all parties to alleged deficiencies in the evidence and advances [both] the truth-seeking purpose of the trial [and] the goal of swift and final determinations of the guilt or nonguilt of a defendant” (People v Gray, 86 NY2d at 21).

Further, if a defendant presents a case, “the time . . . when the court had an opportunity of effectively” (CPL 470.05 [2]) dealing with a supposed evidentiary insufficiency is “at the conclusion of all the evidence” (CPL 290.10 [1]). Given that a defense case could “inadvertently supply a deficiency in the People’s case” (People v Kirkpatrick, 32 NY2d at 21), an evidentiary insufficiency that might have been present “[a]t the conclusion of the people’s case” may no longer exist at “the conclusion of all the evidence” (CPL 290.10 [1]). Accordingly, a defendant who believes that the trial evidence remains insufficient must move to dismiss “at the conclusion of all the evidence” (CPL 290.10 [1]).

“[A] party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered” (CPL 470.05 [2]). Nonetheless, a motion to dismiss made at the close of the People’s case cannot be deemed to encompass a claim that the entire trial record, including evidence that the defendant may offer in defense, is insufficient. As previously noted, the defendant may “inadvertently” (People v Kirkpatrick, 32 NY2d at 21) close the evidentiary gap in the People’s case.

While Kirkpatrick did not “involve preservation” (majority op at 273 n 3), it nonetheless set the tone for what the trial court here could review, and, concomitantly, what defendant had to do to preserve his claim. As was the case in Kirkpatrick, the trial court was no longer “authorized to consider” (CPL 290.10 [1]) the sufficiency of the People’s case after defendant put in proof. Defendant never moved to dismiss in light of the trial evidence in its entirety, although he had the opportunity to do so at the close of his proof or at the charge conference. Thus, the majority is wrong to say that the trial court had a “full opportunity to review the issue in question” (majority op at 273).

At the close of the People’s case, defendant articulated a reason to support his motion for dismissing the intentional murder count by referring to a statement that he made in a videotape interview conducted by the assistant district attorney. Specifically, when asked by the assistant district attorney “pointblank” whether he intended to kill the victim, defendant responded that this was “a tough question, he really didn’t know.” With respect to the depraved mind murder count, however, defendant argued only “that one shot from a shotgun is not depraved indifferent action as . . . contemplated by the legislature and enunciated by the courts in their decisions throughout the years.” He neglected to say why a single shot is not depraved mind murder. He never specified the element of depraved mind murder for which sufficient proof was lacking. For all the trial court knew, defendant might have been arguing that the circumstances were not depraved because he fired a single, rather than multiple, gunshots (cf. Gonzalez, 1 NY3d at 468). Whatever the defendant may have meant, there is no reason to believe that his general objection adequately alerted the trial court to the claim that he now raises, informed by our subsequent decisions in Sanchez and especially Hafeez and Gonzalez; namely, that one shot from a shotgun could only support a conviction for intentional murder.

Indeed, defendant’s testimony (unmentioned by the majority) contradicts what he now argues. At trial, defendant protested that he had not acted intentionally. He told the jury that he grabbed his weapon for reasons of self-defense and to protect his girlfriend and young daughter. Defendant asserted that the victim had threatened him and his family, was drunk and had a gun. According to defendant, he fired his gun at the victim almost instinctively, perhaps carelessly, and certainly not intentionally.

At the charge conference, defendant’s attorney asked the trial judge to instruct the jury on justification. When asked if the defense had any other requests with respect to the charge, defendant’s attorney mentioned the voluntariness of defendant’s statements. He also observed that he

“would also state for the record at this time that I am not—the defendant is not asking for any down charges, we’re not asking for any lesser included offenses to be charged. And I’d like [defendant], if possible, to acknowledge that on the record in your presence, your Honor, that he has specifically asked me not to ask for any lesser included defenses [sic], manslaughter, criminally negligent homicide—”

The defendant then jumped in, stating “That’s true. Let the charges, please, stand on the top charges that I was arrested on and no other charges.” Even after the trial judge refused to charge justification, defendant steadfastly rejected requesting the court to charge the jury on lesser included offenses. When the trial judge asked defendant one final time if it was his “wish [that] only the two counts charged in the indictment [be] given to the jury for their deliberations,” defendant responded “Yes, sir, it is.”

Nothing in defendant’s testimony or this discussion at the charge conference would have motivated the trial judge to revisit the motion on the depraved mind charge of his own accord. If defendant had moved for a trial order of dismissal at the conclusion of his proof or had objected to the trial court’s submission (cf. Sanchez, 98 NY2d at 390) on the ground that he now advances—that he could only have acted intentionally, not recklessly—the trial judge would have had the opportunity to consider the motion on the entire record, and might have granted it. Whether or not the trial court granted the motion, defendant’s making of it might have prompted the People to pursue a different course of action, perhaps by asking the trial judge to instruct the jury to consider manslaughter rather than acquiescing in defendant’s request for the trial judge not to instruct the jury on any lesser included offenses. Given the option of manslaughter, the jury might have delivered a different verdict.

Defendant admittedly killed the victim. As the record discloses, he ultimately gambled on gaining acquittal by restricting the jury’s choices to intentional and depraved mind murder, and lost. Now he seeks to reverse his conviction by resurrecting an ill-defined objection that he abandoned as the trial progressed. Because defendant did not move for a trial order of dismissal following the close of his case—or ask at that time to renew his earlier motion or object to the trial judge’s submission or even ask the judge to rule on the reserved motion after the jury returned a guilty verdict—he has not preserved any claim that the evidence adduced during trial was legally insufficient to support his conviction for depraved mind murder (see People v Hines, 97 NY2d at 61-62). Accordingly, defendant has not presented us with a reviewable question of law (see id. at 62). However strongly some of our colleagues may feel that “depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York” (majority op at 270), the Court does not properly reach the merits on this appeal.

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

Order reversed, etc.

      . Neither side asked that the jury consider lesser included charges.

        . People v Roe (74 NY2d 20, 22 [1989]) may be a rare exception—the only one in our decisional law. There, the defendant deliberately loaded a mix of live and dummy shells at random into the magazine of a 12-gauge shotgun. He pumped a shell into the firing chamber, not knowing whether it was a dummy or live round. The defendant pointed the gun directly at the victim and said “Let’s play Polish roulette. . . . Who is first?” (Id.) He then pulled the trigger and discharged a live round into the victim, killing him. This type of shooting is the antithesis of intentional murder because it evinces not an intent to kill, but an indifference—a depraved indifference—to the life or death of the victim. We note that the dissent in Roe argued that the majority mischaracterized depraved indifference murder’s core element as mere recklessness rather than depraved indifference, and that as long as depraved indifference murder and reckless manslaughter were identified as having the same core element—mere recklessness—depraved indifference murder could be improperly used as a proxy for reckless manslaughter (74 NY2d at 29-38;
        see also People v Sanchez, 98 NY2d at 398, 406-411 [dissenting op]; People v Hafeez, 100 NY2d 253, 260 [2003] [concurring op]). In seeking reversal, defendant, citing Jones v Keane (329 F3d 290 [2d Cir 2003], cert denied 540 US 1046 [2003]), has made that argument. We need not address it, because we conclude that under any hypothesis defendant did not commit depraved indifference murder.

      . To the extent the dissent relies on People v Kirkpatrick (32 NY2d 17 [1973]), we note that the case did not involve preservation.

      . In Kirkpatrick, the trial court sat as the factfinder (see People v Kirkpatrick, 64 Misc 2d 1055, 1056 [Crim Ct, NY County 1970]). We have emphasized, however, that the rules of preservation apply equally to jury and nonjury trials (see e.g. People v Santos, 86 NY2d 869, 870-871 [1995]).

      . Defendant stated in his brief to us that “[t]he trial court denied defense counsel’s request for a trial order of dismissal”; at oral argument, the People characterized the motion as “implicitly denied.” There is no indication in the record that the trial court revisited the reserved motion. After the jury returned a guilty verdict, defendant asked only for the jurors to be polled; he did not ask the trial court to rule on any reserved motion.

      . CPL 290.10 (1) unambiguously refutes the majority’s assertion that a CPL 290.10 motion made at the close of the People’s case can somehow be treated by a trial court as if the motion had been made at the close of all the evidence (see majority op at 273). If this were the case, then the Legislature would not have taken pains to differentiate between these two situations, especially since they coincide only if a defendant presents no case. When, as is the case here, a defendant presents a case, CPL 290.10 expressly contemplates the need for a separate motion at “the conclusion of all the evidence” (CPL 290.10 [1]).

      . As originally enacted, CPL 290.10 did not provide for a trial court to reserve decision on a motion to dismiss for insufficiency of the evidence. The Legislature amended the statute in 1983 to endorse this procedure as a way to preserve the People’s right to appeal and reinstate a conviction after a trial order of dismissal without implicating double jeopardy principles (see L 1983, ch 170, § 1; see also People v Key, 45 NY2d 111 [1978]). Thus, the direction for a reserved motion to be determined “upon such evidence as [the court] would have been authorized to consider upon the motion had the court not reserved decision” (CPL 290.10 [1]) postdated our observation in Kirkpatrick “that a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People’s case, proceeds with the risk that he will inadvertently supply a deficiency in the People’s case” (32 NY2d at 21). “The Legislature is . . . presumed to be aware of the decisional and statute law in existence at the time of an enactment” (Arbegast v Board of Educ., 65 NY2d 161, 169 [1985]; see also People v Robinson, 95 NY2d 179, 184 [2000]).

      . By contrast, the defendants in People v Sanchez (98 NY2d 373 [2002]), People v Hafeez (100 NY2d 253 [2003]) and People v Gonzalez (1 NY3d 464 [2004]) formulated objections that did, at least, identify the element of depraved mind murder that they argued was lacking, or set forth an intelligible basis for the objection (see e.g. Sanchez, 98 NY2d at 390 [defendant objected to the charge, arguing that “[t]here is nothing to indicate in this record that defendant at any time acted in a depraved manner, which would require him to do some thinking about it, and recklessly, which would reach that particular point where murder in the second degree reckless and depraved should be charged”]; see also Gonzalez, 1 NY3d at 466 [“At the conclusion of the People’s proof, defendant moved for a trial order of dismissal, arguing that the evidence was legally insufficient to establish his guilt of depraved indifference, as opposed to intentional, murder”]).

      . These three decisions postdate the trial in this case. Sanchez and Hafeez were handed down before defendant’s appeal was submitted in the Appellate Division; Gonzalez was handed down afterwards, but before briefing and oral argument in our Court.


author: Rosenblatt, J.

text:
    [819 NE2d 206, 785 NYS2d 738]
    Tanya Bonnette, Individually and as Mother and Natural Guardian of Majhan Wiggins, Appellant, v Long Island College Hospital et al., Respondents, et al., Defendants.
    Argued September 14, 2004;
    decided October 21, 2004

      POINTS OF COUNSEL

      Thomas Torto, New York City, and Richard Frank, P.C., for appellant.
    I. As a matter of law, the stipulation of settlement is enforceable since it substantially complies with CPLR 2104. (Hallock v State of New York, 64 NY2d 224; Matter of Dolgin Eldert Corp., 31 NY2d 1; Popovic v New York City Health & Hosps. Corp., 180 AD2d 493; Van Ness v Rite-Aid of N.Y., 129 AD2d 931; Morrison v Bethlehem Steel Corp., 75 AD2d 1001; Golden Arrow Films v Standard Club of Cal., 38 AD2d 813; Hub Press v Sun-Ray Light. Co., 100 Misc 2d 1055; Monaghan v SZS 33 Assoc., L.P., 875 F Supp 1037; La Marque v North Shore Univ. Hosp., 120 AD2d 572; Bernstein v Salvatore, 62 AD2d 945.) II. Alternatively, as a matter of law, failure to comply with technical requirements of CPLR 2104 does not preclude enforcement of the stipulation of settlement, since its terms are not disputed by defendants, the party to be charged, and there has been substantial performance by such party. (Matter of Dolgin Eldert Corp., 31 NY2d 1; Rose v Spa Realty Assoc., 42 NY2d 338; Clark Constr. Corp. v BLF Realty Holding Corp., 300 AD2d 49.) III. Alternatively, defendants are estopped from relying upon a technical noncompliance with CPLR 2104. (Van Ness v Rite-Aide of N.Y., 129 AD2d 931; Monaghan v SZS 33 Assoc., L.P., 875 F Supp 1037; Mutual Life Ins. Co. v O’Donnell, 146 NY 275; Kret v Gergely, 64 AD2d 692; Lee v Rudd, 120 Misc 407; Schwartz v Leasehold Corp. of N.Y., 181 Misc 666; Smith v Lefrak Org., 142 AD2d 725; Lowe v Steinman, 284 AD2d 506; La Marque v North Shore Univ. Hosp., 120 AD2d 572; Hansen v Prudential Lines, 118 Misc 2d 568.)

      Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains (Edward J. Guardaro, Jr., of counsel), for respondents.
    I. No agreement to settle was ever consummated. (Popovic v New York City Health & Hosps. Corp., 180 AD2d 493; Mitchell v New York Hosp., 61 NY2d 208; Morretta v Dyson, 173 AD2d 257; Hallock v State of New York, 64 NY2d 224; Wolstencroft v Sas

      sower, 212 AD2d 598; Citibank v Rathjen, 202 AD2d 235; Conlon v Concord Pools, 170 AD2d 754; Matter of Kanter, 209 AD2d 365; Harragan v Harragan, 204 AD2d 686; Daniel v Long Is. Univ., 184 AD2d 350.) II. No substantial performance occurred and the requirements of CPLR 2104 were not fulfilled. (Matter of Dolgin Eldert Corp., 31 NY2d 1; Avaltroni v Gancer, 260 AD2d 590; Johnson v Four G’s Truck Rental, 244 AD2d 319; Phillips v Pamper Decorating Serv., 228 AD2d 425; Zambrana v Memnon, 181 AD2d 730; Graffeo v Brenes, 85 AD2d 656; Richardson & Lucas v New York Athletic Club, 304 AD2d 462; Anostario v Vicinanzo, 59 NY2d 662; Clark Constr. Corp. v BLF Holding Corp., 300 AD2d 49.) III. The doctrine of equitable estoppel is unavailable in this case. (Matter of Janis C. v Christine T., 294 AD2d 496; Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443; K. Bell & Assoc. v Lloyd’s Underwriters, 827 F Supp 985; Metropolitan Life Ins. Co. v Childs Co., 230 NY 285; Broadworth Realty Assoc. v Chock 336 B’way Operating, 168 AD2d 299; Van Ness v Rite-Aide of N.Y., 129 AD2d 931; Buckingham Mfg. Co. v Frank J. Koch, Inc., 194 AD2d 886; Conlon v Concord Pools, 170 AD2d 754; Rhulen Agency v Gramercy Brokerage, 106 AD2d 725.)

      Michaels & Smolak, P.C., Auburn (Michael G. Bersani of counsel), for New York State Trial Lawyers Association, amicus curiae.
    Public policy favors enforcement of this settlement. (People v Stephens, 52 NY 306; Mitchell v New York Hosp., 61 NY2d 208; Matter of Rose BB., 300 AD2d 868; Kimmel v State of New York, 172 Misc 2d 906; Hallock v State of New York, 64 NY2d 224; Schwartz v Leasehold Corp. of N.Y., 181 Misc 666; Mutual Life Ins. Co. v O’Donnell, 146 NY 275; Smith v Bach, 82 App Div 608; Schweinburg v Altman, 131 App Div 795; Kleinberg v Ambassador Assoc., 64 NY2d 733.)
   OPINION OF THE COURT

Rosenblatt, J.

The parties before us entered into an out-of-court oral settlement. On this appeal we must determine whether their agreement satisfies the statutory requirement that settlements be made in open court or in a signed, complete writing (see CPLR 2104). We conclude that the agreement, although undisputed, was never sufficiently reduced to writing, and was therefore unenforceable. We therefore affirm the Appellate Division order so holding.

I.

On June 27, 1996, plaintiff Tanya Bonnette commenced this medical malpractice action on her own behalf and on behalf of her daughter, Majhan, against Long Island College Hospital, Dr. Richard Bergeron and three other defendants. After lengthy discovery, in December 1998, Bonnette reached an oral agreement with the hospital and Dr. Bergeron, to settle the case for $3,000,000 to be paid entirely by the hospital. To finalize the agreement formally, the hospital required Bonnette to complete stipulations of discontinuance for both defendants, a stipulation of waiver for Dr. Bergeron and a general release, as well as to obtain an infant compromise order from the court. On February 29, 2000, the hospital sent the forms to Bonnette with a cover letter, saying, “enclosed are copies of closing documents required to effectuate [the] settlement.”

Bonnette delayed returning the necessary forms to the hospital while she sought an appropriate annuity plan from the hospital’s chosen annuity company. She also negotiated with the New York City Human Resources Administration which held liens against any award made to Majhan because of the City’s payment for much of the child’s medical expenses. After several months, Bonnette selected a payment plan with the hospital’s annuity company. She also concluded arrangements with the City. On July 11, 2000, Bonnette mailed a stipulation of discontinuance in favor of Bergeron, who would have no responsibility to fund the settlement under the agreement between Bonnette and the hospital. Bonnette did not, however, complete a stipulation relating to the hospital.

Barely two weeks later, on July 25, 2000, the child died. Bonnette informed the hospital of her death. The hospital responded on December 11, 2000, tersely informing Bonnette that because the settlement had not been finalized as required by CPLR 2104, the hospital considered no settlement to exist.

Bonnette then moved to enforce the settlement in Supreme Court. Although the hospital conceded the terms of its understanding with Bonnette, it argued that no binding agreement was established because the settlement was never reduced to writing. Supreme Court disagreed, granted Bonnette’s motion and issued an order to take effect upon Bonnette’s completion of the remaining forms, including the general release and stipulation of discontinuance, and upon execution of an infant compromise order. Bonnette promptly completed these requirements in compliance with the order.

The hospital appealed Supreme Court’s enforcement of the settlement. The Appellate Division reversed, holding that Bonnette’s failure to obtain any writing with the complete settlement terms or any recitation in open court of the settlement terms did not satisfy CPLR 2104 and precluded enforcement of the parties’ agreement. An Appellate Division Justice dissented, and the Appellate Division granted leave to appeal to this Court. We affirm.

II.

Our analysis begins with the language of the statute. CPLR 2104 states, in relevant part, “An agreement between parties or their attorneys relating to any matter in an action ... is not binding upon a party unless it is in a writing subscribed by him or his attorney.” Bonnette makes three arguments in support of her contention that the settlement should be enforced. First, she asserts that the correspondence from the hospital forwarding the settlement papers constitutes a sufficient writing to bring the agreement within the scope of CPLR 2104. We reject this argument because the hospital’s letters, although acknowledging the existence of an agreement, do not incorporate all the material terms of the settlement (see Matter of Galasso, 35 NY2d 319, 321 [1974] [refusing to enforce a settlement that, although proposed in open court, did not reflect a complete agreement as to all material terms]).

Next, Bonnette argues that even if the correspondence does not constitute full technical compliance with CPLR 2104, there was enough in writing to show substantial compliance with the statute. Lastly, Bonnette invokes equitable estoppel, arguing that the parties have partially performed the settlement terms and that, to her detriment, the hospital induced her to rely on it. If there are rare occasions when these doctrines can permit enforcement of a settlement agreement where the literal terms of CPLR 2104 are not satisfied (a question which we do not decide), this is not one of them.

The plain language of the statute directs that the agreement itself must be in writing, signed by the party (or attorney) to be bound (CPLR 2104). As we remarked over a century ago,

“[t]his rule is of somewhat ancient origin. It grew out of the frequent conflict between attorneys as to agreements made with reference to proceedings in actions, and was intended to relieve the courts from the constant determination of controverted questions of fact with reference to such proceedings” (Mutual Life Ins. Co. of N.Y. v O’Donnell, 146 NY 275, 279 [1895]).

To allow the enforcement of unrecorded oral settlements would invite an endless stream of collateral litigation over the settlement terms. This would run counter not only to the statute, which on its face admits of no exceptions, but also to the policy concerns of certainty, judicial economy, flexibility to conduct settlement negotiations without fear of being bound by preliminary offers and the prevention of fraud.

Furthermore, our State’s strong policy promoting settlement (see Hallock v State of New York, 64 NY2d 224, 230 [1984]), repeatedly advanced by Bonnette as a reason to enforce the settlement here, actually convinces us that we cannot enforce the hospital’s unwritten agreement with Bonnette. If settlements, once entered, are to be enforced with rigor and without a searching examination into their substance, it becomes all the more important that they be clear, final and the product of mutual accord. These concerns obviously lie at the heart of CPLR 2104, a neutral statute enacted to promote certainty in settlements, which benefits all litigants.

For all of these reasons, we hold that to be enforceable under CPLR 2104 an out-of-court settlement must be adequately described in a signed writing. Bonnette’s settlement with the hospital did not meet that requirement. Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

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

Order affirmed, etc.

      . Bonnette concluded a separate settlement with other defendants in the sum of $950,000, an agreement that remains in force and is not part of the present dispute.

      . The statute also provides for settlements entered into orally in open court, but that issue does not arise in the case at bar.


author: Ciparick, J.

text:
    [819 NE2d 1025, 786 NYS2d 409]
    Rhonda Covington, Appellant, v Carlton Walker, Respondent.
    Argued September 14, 2004;
    decided October 26, 2004

      POINTS OF COUNSEL

      Morningside Heights Legal Services, Inc., New York City (Philip M. Genty, Peggy Cross and Edward Smock of counsel), for appellant.
    I. The trial court’s application of the divorce statute of limitations violates accepted canons of statutory interpretation and the doctrine of continuing violations. (Blanco v American Tel. & Tel. Co., 90 NY2d 757; Snyder v Town Insulation, 81 NY2d 429; Britt v Legal Aid Socy., 95 NY2d 443; Pergolizzi v Pergolizzi, 59 Misc 2d 1027; Colascione v Colascione, 57 Misc 2d 199; Rusher Ford Sales v Glens Falls Ins. Co., 32 Misc 2d 468, 16 AD2d 1034; Hotaling v General Elec. Co., 16 AD2d 339, 12 NY2d 310; Schmidt v Merchants Despatch Transp. Co., 270 NY 287; Zappone v Home Ins. Co., 55 NY2d 131.) II. The background and legislative history of Domestic Relations Law § 170 (3) and § 210 support appellant’s position that the action is not time-barred, because respondent remains incarcerated. (Association of Surrogates & Supreme Ct. Reporters within City of N.Y. v State of New York, 78 NY2d 143; Le Drugstore Etats Unis v New York State Bd. of Pharm., 33 NY2d 298; Rankin v Shanker, 23 NY2d 111; Pergolizzi v Pergolizzi, 59 Misc 2d 1027; Short v Short, 57 Misc 2d 762; Matter of Lindewall, 287 NY 347.) III. The Practice Commentary upon which the lower court relied has no basis in case law or legislative history. (Pergolizzi v Pergolizzi, 59 Misc 2d 1027; Short v Short, 57 Misc 2d 762; Agin v Krest Assoc., 157 Misc 2d 994; People v Jenkins, 100 Misc 2d 935.)

      Hancock & Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), for respondent.
    The courts below correctly held that the statute of limitations for an imprisonment divorce under Domestic Relations Law § 170 (3) and § 210 accrues once at a definite time—the third anniversary of defendant spouse’s incarceration—and expires five years later, rather than accruing continuously each and every day for an indefinite period of years or decades from the third anniversary of incarceration until five years after the imprisoned spouse’s release from prison. (Colascione v Colascione, 57 Misc 2d 199; Blanco v American Tel. & Tel. Co., 90 NY2d 757; Snyder v Town Insulation, 81 NY2d 429; Ackerman v Ackerman, 200 NY 72; Pajak v Pajak,
      56 NY2d 394; Habib v Habib, 278 AD2d 277; McKilligan v McKilligan, 156 AD2d 904; Albert v Albert, 44 AD2d 895; I.S. v R.S., 117 AD2d 780; Omahen v Omahen, 289 AD2d 890, 97 NY2d 613.)
   OPINION OF THE COURT

Ciparick, J.

The issue presented by this appeal is whether plaintiffs cause of action for divorce on the ground of imprisonment pursuant to Domestic Relations Law § 170 (3), brought 16 years after the commencement of defendant’s confinement, is barred by the five-year statute of limitations as set forth in Domestic Relations Law § 210. Resolution of this question turns on whether the statute of limitations is measured from the date of defendant’s third consecutive year of incarceration or from the date of his release from prison (see Domestic Relations Law § 170 [3] [providing that an action for divorce may be maintained on the ground of the defendant’s confinement in prison for a period of at least three consecutive years]). We conclude that the cause of action accrues on the date defendant completes his third consecutive year of incarceration, but the statute of limitations does not begin to run until the date he is released from prison. Thus, plaintiffs divorce action is not time-barred.

I.

On May 12, 1983, plaintiff wife and defendant husband were married. Thereafter, on January 28, 1984, defendant was arrested for the shooting death and robbery of a cab driver. In 1985, he was convicted, upon a jury verdict, of murder in the second degree, robbery in the first degree and criminal possession of a weapon in the second degree, and sentenced to a prison term of 25 years to fife. Defendant has been incarcerated since the date of his arrest. Plaintiff, who was convicted for the same crimes as defendant, is also incarcerated.

On April 10, 2000, plaintiff commenced this action for divorce on the ground that defendant has been confined for a period of three or more consecutive years after their marriage (see Domestic Relations Law § 170 [3]). Plaintiff moved for summary judgment of divorce pursuant to CPLR 3212, contending that no triable issues of fact exist. In opposition, defendant asserted a number of defenses including the five-year statute of limitations (see Domestic Relations Law § 210). Arguing that the five-year limitations period begins to run from the end of his third continuous year of incarceration, defendant urged that the action is time-barred as it was commenced long after his eighth successive year in prison. In fact, defendant had been incarcerated for over 16 years at the time the action was commenced. Plaintiff responded that accrual of this cause of action for divorce is properly measured from any time after three years of continuous incarceration up until the date on which defendant is released from prison and, therefore, her action is timely.

Supreme Court dismissed plaintiffs action on summary judgment; A divided Appellate Division affirmed, the majority concluding that “[t]he imprisonment ground for divorce arose once the defendant had been incarcerated for three years, a date which is more than five years before the commencement of this action” (307 AD2d 908, 908 [2d Dept 2003]). Two dissenting Justices held that “the imprisonment ground is a continuing ground which terminates upon the imprisoned person’s release from prison” (id. at 909). Plaintiff appeals as of right from the Appellate Division order based on the two-Justice dissent. We agree with the dissenters and now reverse.

II.

In 1966, the Legislature enacted the Divorce Reform Law amending the former laws of this state which, since 1787, recognized adultery as the only ground for divorce (see L 1966, ch 254; see generally Gleason v Gleason, 26 NY2d 28 [1970]). The grounds were expanded to six, including divorce predicated on confinement in prison (see Domestic Relations Law § 170). Domestic Relations Law § 170 provides that:

“An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on . . . the following groundf ]: . . .
“(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.”

The general purpose underlying the new statute was to “recognize grounds for divorce ... as manifestations of dead marriages, marriages that should be terminated for the mutual protection and well being of the parties and, in most instances, of their children” (1966 Report of Joint Legis Comm on Matrimonial and Family Laws to Legislature of State of NY, at 85; see also Gleason, 26 NY2d at 35 [recognizing the legislative policy of divorce actions based on separation agreements]). “The marriage, killed by separation, is the basis for divorce” on the grounds of imprisonment (1968 Report of Joint Legis Comm on Matrimonial and Family Laws to Legislature of State of NY, at 27). This ground was added to the statute so that a spouse would not have to endure the restrictions of marriage with none of its economic or emotional benefits (1966 Report, at 88).

The statute further creates a statute of limitations for these new causes of action. Pursuant to Domestic Relations Law § 210, “[n]o action for divorce or separation may be maintained on a ground which arose more than five years before the date of the commencement of that action for divorce or separation.” Statutory exemptions to section 210 exist only for divorce actions based on abandonment, adultery or a separation decree, judgment or agreement (see Domestic Relations Law § 210 [a]). While the statute makes the grounds and the period clear, it gives no indication as to when the limitations period begins to run against the plaintiff in a section 170 (3) action for divorce.

Defendant here essentially contends that, because section 170 (3) does not permit an action for divorce until the defendant has been confined for three years, the divorce action on this ground arises for statute of limitations purposes only on the date marking that third year. We reject this narrow construction as inconsistent with the statutory scheme (McKinney’s Cons Laws of NY, Book 1, Statutes § 96; see also Council of City of N.Y. v Giuliani, 93 NY2d 60, 69 [1999]). We hold that a cause of action for divorce based on the ground of imprisonment continues to arise anew for statute of limitations purposes on each day the defendant spouse remains in prison for “three or more consecutive years” until the defendant is released.

The purpose of the requirement that the defendant be incarcerated for three years prior to the commencement of an action for divorce is to give the convicted party an opportunity to obtain release from prison and to prevent the “natural but sometimes too rash inclination to dissolve a marriage” upon a spouse’s conviction (1966 Report of Joint Legis Comm on Matrimonial and Family Laws to Legislature of State of NY, at 89). Nothing in the legislative history suggests, however, that Domestic Relations Law § 170 (3) was intended to start the statute of limitations running against the plaintiff spouse as early as possible so as to create the potential for a spouse, who may have missed the five-year window—indeed, may have had young children and chose not to seek divorce earlier—to unwillingly remain in a dead marriage.

Defendant’s proposed construction of Domestic Relations Law § 170 (3) would have us foster these very perils by establishing a rule that the statute of limitations may run against a plaintiff to bar a divorce action while the defendant remains incarcerated. Such a result would contravene the statute’s underlying goals of liberalizing the grounds for divorce and encouraging parties to attempt reconciliation. The spouse, who is ready to move forward with life, would thereby become entrapped in the union.

Plaintiff further contends that the words “or more” in Domestic Relations Law § 170 (3) suggest that divorce actions based on imprisonment are actions involving recurring injuries to the parties which implicate the continuous wrong doctrine. We agree. This Court has applied the doctrine in certain cases such as nuisance or continuing trespass where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed (see generally Jensen v General Elec. Co., 82 NY2d 77, 85 [1993]; see also 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48 [1964]; Sorrentino v Mierzwa, 30 AD2d 549 [1968], revd on other grounds 25 NY2d 59 [1969]). The rule is based on the principle that continuous injuries create separate causes of action barred only by the running of the statute of limitations against each successive trespass (see Jensen, 82 NY2d at 85; see also 509 Sixth Ave., 15 NY2d at 52). The repeated offenses are treated as separate rights of action and the limitations period begins to run as to each upon its commission.

While this Court has never applied the continuous wrong doctrine in the context of a divorce action, the Appellate Division departments have consistently found the doctrine applicable in divorce actions where a continuous or recurring course of conduct is alleged (see generally Grubman v Grubman, 156 AD2d 200 [1st Dept 1989]; La Mothe v La Mothe, 148 AD2d 500 [2d Dept 1989]; McKilligan v McKilligan, 156 AD2d 904 [3d Dept 1989]; Albert v Albert, 44 AD2d 895 [4th Dept 1974]). Other jurisdictions have also adopted this approach (see e.g. Bruce v Bruce, 79 NC App 579, 582-583, 339 SE2d 855, 858 [1986]; see also Poe v Poe, 125 Ark 391, 392, 188 SW 1190 [1916]).

Under a continuous wrong or violation rule, where a defendant spouse is incarcerated for a consecutive period exceeding three years, each day of continued confinement beyond three years inflicts new injury on the plaintiff spouse. Thus, although this ground for divorce arises originally at the conclusion of the third consecutive year of a defendant’s incarceration, it continues to arise anew each day thereafter until the defendant is released from prison. An action based on this continuous wrong is barred only by the expiration of the five-year limitations period measured from the date upon which the defendant is released from prison.

Adopting a contrary rule—that an action for divorce based on imprisonment arises only once—would further none of the policy considerations at the heart of our statutes of limitations jurisprudence. “Statutes of Limitation were ‘designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared’ ” (Blanco v American Tel. & Tel. Co., 90 NY2d 757, 773 [1997] [citation omitted]). Other interests include “promoting] repose by giving security and stability to human affairs, judicial economy, discouraging courts from reaching dubious results, recognition of self-reformation by defendants, and the perceived unfairness to defendants of having to defend claims long past” (Blanco, 90 NY2d at 773 [internal quotation marks and citations omitted]). These considerations must be balanced against the injured person’s stake in having a reasonable opportunity to assert a claim (Britt v Legal Aid Socy., Inc., 95 NY2d 443, 449 [2000]).

In divorce actions predicated on confinement in prison these overriding policy concerns are not implicated; the only necessary proof is that the defendant has actually been incarcerated for three or more years—easily shown by Department of Correctional Services records. There is no evidence to be lost or surprise to be had. On the other hand, there is a strong interest in giving the plaintiff the continued right to maintain a cause of action for divorce where “[t]he marriage [has been] killed by separation” (1968 Report of Joint Legis Comm on Matrimonial and Family Laws to Legislature of State of NY, at 27).

The balance is thus best struck by defining the accrual date of plaintiffs cause of action from any time after the conclusion of a defendant’s three years of continuous incarceration up until the time such spouse is released from prison and then running the statute of limitations for five years thereafter. The conduct giving rise to the cause of action—the imprisonment— has ceased by the time the limitations period begins to run, and the need for repose is satisfied. Applying these principles, we conclude that plaintiffs cause of action for divorce is not time-barred.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

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

Order reversed, etc.