author: Fahey, J. Pigott, J.

text:
    [42 NE3d 676, 21 NYS3d 179]
    The People of the State of New York, Respondent, v Raymond Denson, Appellant.
    Argued September 9, 2015;
    decided October 27, 2015

      POINTS OF COUNSEL

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Kerry S. Jamieson of counsel), for appellant.
    I. Because Raymond Denson’s actions did not come “dangerously close” to completing kidnapping in the second degree, and the prosecution failed to present any proof that Mr. Denson intended to confine the complainant in his apartment, the evidence at trial was legally insufficient and Mr. Denson’s conviction should be reversed. (People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Naradzay, 11 NY3d 460; People v Mahboubian, 74 NY2d 174; People v Bracey, 41 NY2d 296; People v Rizzo, 246 NY 334; People v Mills, 178 NY 274; People v Cruz, 296 AD2d 22; People v Sanoguet, 157 Misc 2d 771; People v Acosta, 80 NY2d 665.) II. The trial court abused its discretion by allowing Raymond Denson’s more than 20-year-old prior conviction into evidence, where the prior crime did not involve abduction and was therefore irrevelant to whether Mr. Denson intended to kidnap the complainant. (People v Resek, 3 NY3d 385; People v Henson, 33 NY2d 63; People v Molineux, 168 NY 264; People v Ventimiglia, 52 NY2d 350; People v Alvino, 71 NY2d 233; People v Bradley, 20 NY3d 128; People v Cass, 18 NY3d 553; People v Allweiss, 48 NY2d 40; People v Geaslen, 54 NY2d 510; People v Cassidy, 40 NY2d 763.) III. Where the prosecution alleged that Raymond Denson intended to have a sexual encounter with the complainant when he offered her the keys to his apartment, her confinement in the apartment would have been merely incidental to the sexual assault, and Mr. Denson’s conviction for attempted kidnapping should be dismissed under the “merger doctrine.” (People v Levy, 15 NY2d 159; People v Lombardi, 20 NY2d 266; People v Cassidy, 40 NY2d 763; People v Bussey, 19 NY3d 231; People v Dolan, 40 NY2d 763; People v Usher, 40 NY2d 763; People v Cain, 76 NY2d 119; People v Blair, 25 AD3d 1018;
      People v James, 114 AD3d 1202; People v Geaslen, 54 NY2d 510.) IV. Raymond Denson’s statements to police should have been suppressed where the police did not initially inform Mr. Denson of his Miranda rights, and continued to question him after he invoked his right to remain silent, rendering the later Miranda waiver invalid. (Miranda v Arizona, 384 US 436; Michigan v Mosley, 423 US 96; People v Gary, 31 NY2d 68; People v Wander, 47 NY2d 724; People v Grant, 45 NY2d 366; People v Ferro, 63 NY2d 316; People v Kinnard, 62 NY2d 910; People v Dow, 129 AD2d 535; People v Jenkins, 85 AD2d 265; People v Logan, 19 AD3d 939.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Christopher P. Marinetti and Martin J. Foncello of counsel), for respondent.
    I. Defendant’s guilt of attempted kidnapping in the second degree was proved beyond a reasonable doubt by evidence that defendant, a pedophile with a fixation on the victim, tried to pressure the minor child to go to his apartment. (People v Bleakley, 69 NY2d 490; People v Danielson, 9 NY3d 342; People v Ford, 66 NY2d 428; People v Ramos, 19 NY3d 133; People v Steinberg, 170 AD2d 50, 79 NY2d 673; People v Castillo, 47 NY2d 270; People v Jackson, 65 NY2d 265; People v Gerard, 50 NY2d 392; People v Naradzay, 11 NY3d 460; People v Mahboubian, 74 NY2d 174.) II. The Appellate Division correctly ruled that the “merger doctrine” was inapplicable to the attempted kidnapping conviction. (People v Gonzalez, 80 NY2d 146; People v Lombardi, 20 NY2d 266; People v Bussey, 19 NY3d 231; People v Rios, 60 NY2d 764; People v Perez, 93 AD3d 1032; People v Cruz, 296 AD2d 22, 99 NY2d 534; People v Grey, 224 AD2d 318.) III. As the Appellate Division correctly ruled, admission of the evidence of defendant’s prior sex offense was permissible given the unique circumstances of this case. (People v Ingram, 71 NY2d 474; People v Alvino, 71 NY2d 233; People v Schwartzman, 24 NY2d 241; Matter of Brandon, 55 NY2d 206; People v Morris, 21 NY3d 588; People v Muhammad, 17 NY3d 532; People v Keindl, 68 NY2d 410; People v Moreno, 70 NY2d 403; People v Hernandez, 27 AD3d 229; People v Medina, 93 AD3d 459.) IV. The hearing record supports the Appellate Division’s ruling that defendant’s post -Miranda statements were admissible. (People v Cruz, 90 NY2d 961; People v Scott, 86 NY2d 864; People v Nunez, 80 NY2d 858; People v Huffman, 41 NY2d 29; People v Yukl, 25 NY2d 585; Stansbury v California, 511 US 318; Michigan v Mosley, 423 US 96; People v Kinnard, 62 NY2d 910; People v Gary, 31 NY2d 68; People v Pierre, 309 AD2d 570.)
   OPINION OF THE COURT

Fahey, J.

Defendant was convicted after a nonjury trial of, inter alia, attempted kidnapping in the second degree. On this appeal, we are asked to decide, among other issues, whether the trial court erred in admitting evidence of defendant’s prior conviction of a sex crime committed against a child, as relevant to his intent in the current offense. Defendant also challenges the legal sufficiency of the People’s evidence. We hold that the trial court did not err in admitting evidence of defendant’s prior conviction. We further hold that the evidence is legally sufficient to sustain the conviction of attempted kidnapping in the second degree.

L

The victim of the offense was a 10-year-old girl who lived with her mother in an apartment located above the hardware store where defendant worked. The evidence at trial established that defendant often exchanged greetings with the victim and her mother as they entered or exited the building. When the victim began junior high school in 1998, her mother allowed her to walk alone to and from the school, which was close to their apartment building. During this time, defendant frequently approached the victim as she walked home from school, and he repeatedly offered to take her out for ice cream, or to take her ice skating or to the movies. The victim felt “bothered” by defendant’s conduct and rejected his requests. The victim estimated that defendant made offers to take her out between 30 and 40 times.

On August 29, 1998, when the victim was standing outside the hardware store while her mother was trying to hail a taxi, defendant approached them. The victim and her mother testified that defendant said that the victim was upset with him because he had not taken her ice skating or to the movies. Defendant then stated that he wanted to take the victim to see a film.

On September 6, 1998, the victim heard a knock at the door to her apartment. Her mother was in the shower. She saw no one at the door when she looked through the peephole, but when she opened the door slightly, defendant was standing there. The victim testified that defendant was “dressed up” in a red, “[c]rushed velvet or felt” outfit with red shoes, a “beret hat and a black shirt.” He asked the victim whether she was ready to go to the movies. The victim said that she was not. Defendant asked her if she was busy that week, and the victim said that she was. She then closed the door. This incident took place on a Sunday, when the hardware store was closed. Furthermore, a buzzer access system prevented unauthorized entry to the apartment building, and defendant had not buzzed the victim’s apartment to gain entry.

On September 11, 1998, the victim came home from school alone as usual, entered the apartment building, and began walking up the stairs. She then saw defendant exiting a door to the basement, which the hardware store used for storage. The victim said “hello” to defendant. Defendant, who was standing two to three feet away from the victim, said, “Here’s the keys to my apartment,” and he began to take the chain holding his keys from around his neck. The victim refused to take the keys, and defendant asked her three times if she was sure. When she repeated her refusals, defendant told her to meet him downstairs later that day if she changed her mind and promised he would get her some ice cream. The victim ran upstairs to her mother’s apartment, feeling frightened. Later that day, she told her mother what had happened, and her mother contacted the police. A grand jury subsequently indicted defendant on charges of attempted kidnapping in the second degree (Penal Law §§ 110.00, 135.20) and endangering the welfare of a child (§ 260.10 [1]).

Before trial, the People sought to introduce evidence of defendant’s 1978 sodomy conviction (see former Penal Law § 130.50), arising from his sexual abuse of his stepdaughter, as evidence of his intent with respect to the charge of attempted kidnapping in the second degree. Defendant opposed the People’s application. The court held a lengthy Ventimiglia hearing {see People v Ventimiglia, 52 NY2d 350, 361-362 [1981]), during which it heard the testimony of an expert who testified on behalf of the People, as well as an expert who testified on behalf of defendant. After the hearing, the trial court held that the evidence of defendant’s prior conviction was admissible to prove defendant’s intent.

During the ensuing nonjury trial, the victim and her mother testified with respect to the foregoing facts leading to defendant’s arrest. Defendant’s estranged wife and her niece testified regarding defendant’s sexual abuse of his stepdaughter. Defendant’s estranged wife testified that defendant frequently took his stepdaughter on outings in which he would dress up in a “dress suit” with a fur “round rim hat,” and he would require his stepdaughter to dress up as well. The same expert witnesses who testified at the Ventimiglia hearing also provided testimony at trial.

The court found defendant guilty as charged. A divided Appellate Division affirmed (People v Denson, 114 AD3d 543 [1st Dept 2014]), and one of the dissenting Justices granted defendant leave to appeal to this Court. We now affirm.

IL

Defendant contends that the trial court erred in allowing the People to introduce evidence of his 1978 sodomy conviction as evidence of his intent in the present offense. We disagree.

“[T]he familiar Molineux rule states that evidence of a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant’s propensity to commit the crime charged” (People v Cass, 18 NY3d 553, 559 [2012]). Where, however, “the proffered Molineux evidence is relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes” (id. at 560). Although it is not an exhaustive list, evidence of a defendant’s prior bad acts may be admitted to prove the crime charged when the evidence tends to establish:

“(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial” (id., citing People v Molineux, 168 NY 264, 293 [1901]).

Here, the People asserted that defendant’s prior conviction was relevant to establish his intent with respect to the charge of attempted kidnapping in the second degree. In assessing whether evidence of a defendant’s prior criminal acts should be admitted at trial, a trial court is required to engage in a two-step analysis. First, the trial court must determine whether the People have “identified] some material issue, other than the defendant’s criminal propensity, to which the evidence is directly relevant” (Cass, 18 NY3d at 560). If the People have met that burden, the trial court must then “weigh the evidence’s probative value against its potential for undue prejudice to the defendant” (id; see People v Alvino, 71 NY2d 233, 242 [1987]). “If the evidence has substantial probative value and is directly relevant to the purpose — other than to show criminal propensity — for which it is offered, the probative value of the evidence outweighs the danger of prejudice and the court may admit the evidence” (Cass, 18 NY3d at 560).

Inasmuch as defendant was charged with attempted kidnapping in the second degree, the People were required to prove that he intended to “abduct” the victim, i.e., that he intended to prevent the victim’s liberation “by either (a) secreting or holding [her] in a place where [she was] not likely to be found, or (b) using or threatening to use deadly physical force” (Penal Law §§ 135.00 [2]; 135.20). The People proceeded on the theory that defendant intended to prevent the victim’s liberation by secreting or holding her in a place where she was not likely to be found (see § 135.00 [2] [a]). Thus, the only portion of Penal Law § 135.00 (2) that applies here is paragraph (a).

During the Ventimiglia hearing, the People’s expert witness testified that defendant’s behavior toward the victim in this case closely resembled his pattern of behavior toward his stepdaughter. The fact that defendant had frequently taken his stepdaughter out on “dates” akin to the outings defendant proposed to the victim here suggested to the People’s expert that defendant had groomed his stepdaughter for sexual abuse and that defendant viewed his relationship with his stepdaughter as similar to an appropriate romantic relationship with an adult. The People’s expert opined that defendant was reliving his relationship with his stepdaughter through his behavior toward the victim in this case, and that defendant’s behavior toward the victim demonstrated that he was attempting to be alone with her and to groom her for a sexual relationship. The People’s expert testified that defendant’s prior offense was “critical” in understanding his intent in the current offense.

The People met their initial burden to demonstrate that defendant’s prior conviction was relevant to his intent. Defendant’s actions of attempting to give the victim the keys to his apartment were equivocal, and this was therefore not a case where defendant’s intent could be easily inferred from his conduct (see Alvino, 71 NY2d at 242). Rather, the reason defendant invited the victim to his apartment was important in determining whether he had the requisite intent, i.e., whether he intended to prevent the victim’s liberation by secreting or holding her there (see Penal Law § 135.00 [2] [a]).

Where, as here, the People have demonstrated that they wish to introduce the Molineux evidence for “a proper nonpropensity purpose, the decision whether to admit evidence of defendant’s prior bad acts rests upon the trial court’s discretionary balancing of probative value and unfair prejudice” (People v Dorm, 12 NY3d 16, 19 [2009]; see Cass, 18 NY3d at 560; Alvino, 71 NY2d at 242).

During the Ventimiglia hearing, defendant’s expert agreed that “repetition is a component featured to some perpetrators,” and that the features that suggest repetition with respect to sex offenders were, among others, “[s]imilarity in physical characteristics of victim type” and “similar predator behaviors.” Defendant’s expert further agreed that there were similarities between defendant’s two victims, and that his behavior demonstrated “some evidence of some ritualized aspect of his functioning” and the “possibility of repetition.” She also agreed with the People’s expert that defendant displayed “high fixation.”

Importantly, upon questioning by the court during the Ventimiglia hearing about whether there were differences between the repetitious behavior of some sex offenders and a lay person’s notion of propensity evidence, defendant’s expert agreed that there were “differences between simple propensity and repetition per se.” Furthermore, when asked by the court whether one could “draw an inference of intent from the theory of repetition,” defendant’s expert testified that one could infer “the probability of what [defendant’s] motivation is and the probability of what his goals are” from the repetition of his behavior in the two offenses.

A trial court is “in the best position to evaluate the evidence” when determining whether, in the court’s discretion, the probative value of the proffered Molineux evidence exceeds the potential for prejudice to the defendant (People v Morris, 21 NY3d 588, 597 [2013]). “[T]he trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable. Rather, it must constitute an abuse of discretion as a matter of law” (id.).

In its written decision and order, the trial court held that the evidence presented by the People demonstrated “more than criminal propensity, but ... an actual link between the two offenses.” The court noted that the victims of the two offenses “so closely resemble[d] each other . . . as to be virtual twins,” and that “[c]ertain distinctive patterns of behavior employed by the [defendant on each occasion match to an extraordinary degree.” Moreover, the court concluded that the expert testimony at the Ventimiglia hearing demonstrated that “[defendant was not merely re-offending, but in fact suffered from a fixated fantasy” and had “transferred his fixation and fantasy from victim number one to victim number two and [was] now re-living the previous sexual encounter.” Based on that expert testimony, the court concluded that “the [d]efendant’s fixation with the first victim is proof of his intent with regard to the second.” The court stated that it was aware of the potential for prejudice, but was “satisfied that, with careful limitations and adequate caution to the jury, some facts from the earlier case can be utilized to show a unique connection between the two offenses” and that expert testimony would help a jury “to understand what factors should be considered, or discounted, in assessing those facts and that connection.” Under the circumstances presented here, we cannot say that the trial court abused its discretion as a matter of law in admitting evidence of defendant’s prior conviction.

III.

Defendant further contends that his conviction of attempted kidnapping in the second degree is not supported by legally sufficient evidence because the People failed to prove that he had the requisite intent and that he came dangerously near to completing the crime. We disagree.

A verdict is legally sufficient when, viewing the facts in the light most favorable to the prosecution, “ ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ ” (People v Danielson, 9 NY3d 342, 349 [2007], quoting People v Acosta, 80 NY2d 665, 672 [1993]). A sufficiency review requires the Court to “marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof” (Danielson, 9 NY3d at 349).

With respect to proof of defendant’s intent, as noted, the People were required to prove that defendant intended to prevent the victim’s liberation by secreting or holding her in a place where she was not likely to be found (see Penal Law §§ 135.00 [2] [a]; 135.20). Defendant’s intent may be inferred from his actions and the surrounding circumstances (see People v Bracey, 41 NY2d 296, 301 [1977], rearg denied 41 NY2d 1010 [1977]). This Court has recognized that “circumstantial evidence of intent is often essential to prosecution for an attempted crime because . . . such evidence may be the only way of proving intent in the typical case of criminal attempt” (People v Lamont, 25 NY3d 315, 319 [2015] [internal quotation marks omitted]).

The victim’s mother testified that she did not know defendant’s name or where defendant’s apartment was located until after she contacted the police, and defendant does not dispute that his apartment was a place where the victim was unlikely to be found. The remaining requirements to satisfy the intent element may be inferred from defendant’s conduct (see Bracey, 41 NY2d at 301). Defendant engaged in increasingly bizarre and frightening behavior toward the 10-year-old victim, culminating in an invitation to his apartment, a nonpublic place. Moreover, defendant’s prior conviction was probative of his intent in inviting the victim to his apartment. The People’s expert opined at trial that with his invitation, defendant was attempting to isolate the victim in order to groom her for a sexual encounter. Viewing the facts in the light most favorable to the People, we conclude that there was a valid line of reasoning and permissible inferences from which a reasonable fact-finder could have concluded that defendant had the requisite intent (see Danielson, 9 NY3d at 349).

With respect to defendant’s contention concerning the actus reus element of the crime, this Court has held that for a defendant to be guilty of an attempted crime, the defendant “must have engaged in conduct that came dangerously near commission of the completed crime” (People v Naradzay, 11 NY3d 460, 466 [2008] [internal quotation marks omitted], rearg dismissed 17 NY3d 840 [2011]). The defendant’s conduct “must have passed the stage of mere intent or mere preparation to commit a crime,” but the defendant need not have taken “the final step necessary” to accomplish the crime in order to be guilty of an attempted crime (People v Mahboubian, 74 NY2d 174, 189-190 [1989]; see Naradzay, 11 NY3d at 466).

The People were required to prove that defendant came dangerously near to abducting the victim (see Penal Law § 135.20). As we have acknowledged, the statutory definition of “abduct” is complex (see People v Leonard, 19 NY3d 323, 326-327 [2012]). Penal Law § 135.00 (2) provides, as relevant here, that to “abduct” means “to restrain a person with intent to prevent [her] liberation by . . . secreting or holding [her] in a place where [she] is not likely to be found.” Section 135.00 (1) in turn provides that to “restrain” means

“to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with [her] liberty by moving [her] from one place to another, or by confining [her] either in the place where the restriction commences or in a place to which [she] has been moved, without consent and with knowledge that the restriction is unlawful.”

The statute further provides that a victim may be “so moved or confined ‘without consent’ when such is accomplished by,” as relevant here, “any means whatever, including acquiescence of the victim, if [she] is a child less than [16] years old . . . and the parent, guardian or other person or institution having lawful control or custody of [her] has not acquiesced in the movement or confinement” (§ 135.00 [1] [b]).

The victim’s mother testified at trial that she did not give defendant permission to take the victim anywhere. Defendant contends, however, that assuming he did not plan to accompany the victim to his apartment, there were multiple steps she would have had to take before she would have arrived there, such as learning his address and obtaining transportation to his apartment. Defendant therefore asserts that the People failed to prove that he was dangerously near to completing the crime. Defendant further contends that he did not come dangerously close to obtaining the victim’s acquiescence because the evidence demonstrated that she was “virtually impervious” to his repeated invitations and would never have agreed to go to his apartment.

These contentions amount to an assertion that where a defendant attempts to kidnap a child through that child’s acquiescence (and not through the use of force, intimidation, or deception), whether the defendant has come dangerously near to accomplishing the crime is dependent upon the sophistication, resistance, or other particular characteristics of the child victim. Our analysis with respect to whether a defendant has come dangerously near to completing a crime, however, has focused primarily on the conduct of the defendant, not his or her intended victim (see e.g. People v Clyde, 18 NY3d 145, 155 [2011], cert denied 566 US —, 132 S Ct 1921 [2012]; People v Cano, 12 NY3d 876, 877 [2009], rearg denied 13 NY3d 766 [2009]; Naradzay, 11 NY3d at 467-468; Mahboubian, 74 NY2d at 191-192). The same principle applies here. Thus, in determining whether the People established by legally sufficient evidence that defendant came dangerously near to completing the kidnapping, we focus on the steps defendant took to accomplish the crime, rather than on the actions or disposition of the particular child victim, and whether defendant’s conduct was “potentially and immediately dangerous” (Mahboubian, 74 NY2d at 191).

The People presented evidence that defendant repeatedly tried to convince the victim to accompany him on various outings, asking her 30 to 40 times as she walked home alone from school. Defendant arrived at the victim’s apartment unannounced and uninvited and asked her if she was ready to go to the movies. He was dressed up for the occasion, and he somehow had circumvented the buzzer system used to gain access to the apartments inside the building. Moreover, on that occasion, defendant showed up at the victim’s door on a Sunday, when the hardware store was closed. Five days later, defendant approached the victim while she was alone in the stairwell of the building, came within two or three feet of her, and attempted to give her the keys to his apartment. When she refused, he asked her three times if she was sure, and then told her to meet him later if she changed her mind and that he would give her ice cream. Viewing the evidence in the light most favorable to the People, a rational factfinder reasonably could conclude that defendant “crossed ‘the boundary where preparation ripens into punishable conduct’ ” (Naradzay, 11 NY3d at 467, quoting Mahboubian, 74 NY2d at 190).

Defendant further contends that because the steps remaining to accomplish the crime were within the control of the victim, and not within his own control, the evidence is not legally sufficient to establish an attempt. Defendant relies on cases where this Court noted that the conduct of the defendants “had gone to the extent of placing it in their power to commit the offense unless interrupted” (Mahboubian, 74 NY2d at 191 [internal quotation marks omitted]; see Naradzay, 11 NY3d at 467; Acosta, 80 NY2d at 671). While that is a factor to consider in determining whether a defendant has come dangerously near to completing the crime, we have not held that for evidence of an attempt to be legally sufficient, completion of the crime must be solely within the power of the defendant.

Indeed, under defendant’s rationale, a defendant could not be guilty of an attempted crime where it was impossible for the defendant to complete the crime through actions within his or her own power. This is contrary to well-settled law (see Penal Law § 110.10). Applying defendant’s rationale to an attempted kidnapping where, as here, the defendant attempts to complete the crime through the acquiescence of a child victim, a defendant could never be guilty of attempt because the crime could not be completed without the acquiescence of the victim. That is, although the victim could not legally consent (see Penal Law § 135.00 [1] [b]), defendant argues, in essence, that the People were required to prove that she would have consented in order to show that defendant attempted to kidnap her. We therefore reject defendant’s rationale. Rather, under the circumstances of this case, a rational factfinder could conclude that defendant had moved beyond mere preparation to the point that his conduct was potentially and immediately dangerous (see Naradzay, 11 NY3d at 467; Mahboubian, 74 NY2d at 190-191). We therefore conclude that the evidence is legally sufficient to establish defendant’s guilt of attempted kidnapping in the second degree.

IV.

Defendant’s remaining contentions do not warrant reversal. Defendant was not charged with any other crime with which the kidnapping charge could have merged, and therefore his contention that his kidnapping conviction should be dismissed pursuant to the merger doctrine is without merit (see People v Rios, 60 NY2d 764, 766 [1983]). Defendant’s further contention that the trial court should have granted his motion to suppress statements he made to law enforcement involves mixed questions of law and fact, and because there is record support for the determinations made below, those determinations are beyond the review power of this Court (see People v Cruz, 90 NY2d 961, 962 [1997]; People v Harrison, 82 NY2d 693, 694 [1993]; People v Nunez, 80 NY2d 858, 860 [1992]).

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

Pigott, J.

(dissenting). Defendant here is in obvious need of psychological help; but, under the circumstances of this case, he is not guilty of attempted kidnapping in the second degree (Penal Law § 135.20).

The incident that forms the basis of defendant’s attempted kidnapping conviction is laid out in the majority’s telling: on September 11, 1998, after offering the victim keys to his apartment and her refusal, he told her to meet him later that day if she changed her mind and he would buy her some ice cream— the latter being the same type of offer he had made to her some 30 to 40 times previously.

Tired of this conduct, her mother contacted the police. Three days later, a detective contacted the defendant’s employer and advised him of the mother’s complaint. Defendant’s boss told the detective he would send defendant to the precinct when he came to work. Defendant willingly went to the precinct and spoke with police about the incidents. As a result, he was charged with endangering the welfare of a child (Penal Law § 260.10 [1]) and harassment (Penal Law § 240.26 [3]). The misdemeanor information recited the facts as described in the majority’s opinion.

In September 1998, he was arraigned on those charges and pleaded not guilty, rejecting an offer to plead to the charges. Later, in an undated indictment in 1999, defendant’s harassment charge became an attempted kidnapping in the second degree charge, with no change in the underlying facts. The only thing that had changed was that the People learned that, some 20 years earlier, defendant had been convicted of sexually abusing his eight-year-old stepdaughter.

Prior to defendant’s trial, the People made a Ventimiglia/ Molineux application to permit them to introduce evidence of that prior sex conviction. The court initially denied that application. Having failed to prevail on their original application, the People then made an in limine proffer, this time including an expert affidavit. The expert opined that defendant, a convicted child molester, was “trying to relive his sexual pattern” that he had engaged in with his stepdaughter, some 20 years earlier. The court, acknowledging the highly prejudicial value of this testimony, permitted the People’s introduction of this testimony to demonstrate that the instant offense, as described by the expert, was “part of a fixation, a repetitive pattern . . . that results not from merely re-offending, but from actually re-living as a result of transference.”

In my view, the court abused its discretion in allowing in evidence of the prior conviction. While, as the expert suggested, it may have shown that defendant was a convicted child molester who was engaging in pattern behavior similar to that of his prior sex conviction, it was not relevant in a case where no sex crime was involved or charged. Nor can it be relevant to show that defendant intended to kidnap the child, as his prior conviction did not include any kidnapping.

Further, viewing the evidence in the light most favorable to the People, they failed to establish an attempted kidnapping beyond a reasonable doubt. “A person is guilty of kidnapping in the second degree when he abducts another person” (Penal Law § 135.20). As relevant here, “abduct,” as defined by Penal Law § 135.00 (2), “means to restrain a person with intent to prevent his liberation by . . . (a) secreting or holding him in a place where he is not likely to be found.” In turn, restrain means

“to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful” (Penal Law § 135.00 [1]).

“A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). Conduct does not rise to the level of attempt unless the defendant’s actions come “dangerously close” or “very near” to accomplishing the intended crime (People v Mahboubian, 74 NY2d 174, 190-191 [1989]; People v Naradzay, 11 NY3d 460, 466 [2008]).

The People here were required to prove that defendant came dangerously close to “abducting” the child. A simple offer of apartment keys clearly is not enough to show an intent to restrain a child.

In short, defendant offered the child his apartment keys, she did not accept them and she walked away. While defendant clearly engaged in alarming behavior with this child prior to and during this encounter, his actions, even viewing them in a light most favorable to the People, did not come “dangerously close” to an attempted kidnapping. The result — we had a person in need of psychological treatment in one of our prisons without it.

For these reasons, I dissent and would vote to reverse.

Chief Judge Lippman and Judges Rivera, Abdus-Saiaam and Stein concur; Judge Pigott dissents in an opinion.

Order affirmed.


source: Caselaw Access Project

author: Chief Judge Lippman. Pigott, J.

license: Public Domain

text:
    [42 NE3d 693, 21 NYS3d 196]
    The People of the State of New York, Respondent, v Antonio Martinez, Appellant.
    Argued October 14, 2015;
    decided November 19, 2015

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (David J. Klem of counsel), for appellant.
    By failing to provide a basis for the grossly disparate 20-year prison term imposed after trial, the sentencing court failed to overcome the presumption of vindictiveness that arose when the pretrial offer was probation. (Bordenkircher v Hayes, 434 US 357; North Carolina v Pearce, 395 US 711; People v Miller, 65 NY2d 502; People v Granello, 18 NY2d 823; People v Picciotti, 4 NY2d 340; Wasman v United States, 468 US 559; United States v Jones, 997 F2d 1475; United States v Hutchings, 757 F2d 11; United States v Frost, 914 F2d 756; Hess v United States, 496 F2d 936.)

      Robert T Johnson, District Attorney, Bronx (Jordan K. Hummel, Joseph N. Ferdenzi and Karen Swiger of counsel), for respondent.
    No presumption of vindictiveness applied to defendant’s fair and proper sentence where he rejected a plea offer and was convicted after a jury trial; if any presumption did apply, it was rebutted by the sentencing court’s explanation of the sentence on the record. (People v Van Pelt, 76 NY2d 156; North Carolina v Pearce, 395 US 711; People v Young, 94 NY2d 171; People v Miller, 65 NY2d 502; Alabama v Smith, 490 US 794; People v Angona, 119 AD3d 1406; People v Robinson, 72 AD3d 1277, 15 NY3d 809; People v Patterson, 106 AD2d 520; People v Pena, 50 NY2d 400; Williams v New York, 337 US 241.)
   OPINION OF THE COURT

Chief Judge Lippman.

We are asked to decide whether a defendant’s sentencing comports with due process where he rejects a plea offer of 10 years’ probation for a single crime and, after being tried and convicted on multiple charges, is sentenced to 10 to 20 years’ imprisonment. Because a presumption of vindictive sentencing does not apply to the circumstances presented here, we affirm the order of the Appellate Division.

Defendant was charged with rape in the first degree, course of sexual conduct against a child in the first degree, sexual abuse in the first degree, sexual misconduct, and endangering the welfare of a child for committing acts against his neighbor’s six-year-old daughter multiple times between May 1998 and August 1999. After raping her, according to the victim, defendant told her, “if you tell anyone, I will kill your parents.” In 2007, the victim revealed to her mother what defendant had done and defendant was arrested.

Before trial, the People offered defendant a plea to second-degree rape with a sentence of 10 years’ probation. In cautioning defendant about rejecting the plea, the court emphasized that “these allegations are very, very serious . . . [Defendant] faces exposure to 25 years in prison . . . [and] he’s not going to see the likes of [10 years’ probation] from this [c]ourt if he’s convicted.” Stressing that the offer “should be given some careful, careful consideration,” the court remarked that accepting the plea “would spare the witness or the victim to have to testify,” and “[i]f you blow this trial, you are going to prison . . . [flor how long . . . will be determined by what comes back, if the jury convicts you.” Defendant rejected the plea offer and was found guilty of rape in the first degree, sexual abuse in the first degree, sexual misconduct, and endangering the welfare of a child.

At sentencing, the victim spoke about the abuse and described how defendant’s actions had changed her life. When asked if he wanted to say anything, defendant only stated that the victim was “acting like an actress and I would like proof submitted.”

Before imposing the sentence, the court noted that defendant’s statement “clearly doesn’t make me want to give him any leniency ... I was the [c]ourt that presided over the trial, I heard the testimony and the evidence at the trial, and I am basing my sentence solely on what the evidence was and what I am legally allowed to do.” The court also acknowledged the numerous letters of support for defendant. Defendant was sentenced to an aggregate term of imprisonment of 10 to 20 years.

Under the Due Process Clause of the New York State Constitution, a presumption of vindictiveness applies where a defendant successfully appeals an initial conviction, and is retried, convicted, and given a greater sentence than that imposed after the initial conviction (see People v Young, 94 NY2d 171, 176 [1999]; People v Van Pelt, 76 NY2d 156, 160-161 [1990]; People v Miller, 65 NY2d 502, 508 [1985], cert denied 474 US 951 [1985]).

“[C]riminal defendants should not be penalized for exercising their right to appeal” (Young, 94 NY2d at 176). After a new trial, the sentencing court must give affirmative reasons “concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” to justify a higher sentence (Van Pelt, 76 NY2d at 159 [emphasis omitted], quoting North Carolina v Pearce, 395 US 711, 726 [1969]).

In Van Pelt, the defendant successfully appealed his trial conviction and a different judge imposed a higher sentence after the defendant was convicted upon re-trial. This Court held that the enhanced sentence “offend [ed] State constitutional due process protections” because the judge offered no change in circumstances “occurring subsequent to the first sentencing, sufficient to overcome the presumption of institutional ‘vindictiveness’ ” (76 NY2d at 158).

In Miller, the defendant’s original lenient sentence, which was vacated after a successful appeal from his conviction after a guilty plea, was negotiated in exchange for sparing the victim from testifying — a “legitimate and reasoned basis” for granting leniency, and a benefit the defendant relinquished when he proceeded to trial after his appeal (see 65 NY2d at 508-509).

By contrast, the same policy concerns are not implicated when a defendant rejects a plea offer, proceeds to trial for the first time, and is given a harsher sentence than the plea offer. “Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea” (People v Pena, 50 NY2d 400, 412 [1980] [citations omitted]). In Pena, this Court concluded that the defendant was not punished by the imposition of the lawful, but greater, sentence received after rejecting a lenient plea offer and proceeding to trial.

Here, after hearing the court’s warning that he would not receive such leniency should he be found guilty, defendant rejected the plea offer and proceeded to trial. Supreme Court imposed a lawful sentence, based upon defendant’s remorseless statement at the sentencing hearing, the heinous nature of the crimes, and the victim’s sentencing statement. Furthermore, the plea offer would have required defendant to plead guilty to a class D felony, whereas defendant was convicted after trial of a class B violent felony offense for which the court could not have legally imposed the probationary sentence offered with respect to the plea. Defendant’s rejection of the plea offer also required the victim to testify about the sexual abuse at trial, a factor this Court has recognized as a legitimate basis for the imposition of a more severe sentence after trial than that which the defendant would have received upon a plea of guilty (see Miller, 65 NY2d at 509). Had the presumption of vindictiveness applied to this case, these would constitute legitimate and reasoned bases for the more severe sentence imposed (see Miller, 65 NY2d at 508-509).

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

Pigott, J.

(dissenting). In my view, an appearance of judicial vindictiveness arises when a trial judge is aware of an unsuccessful plea discussion and, after trial, the same judge sentences the defendant to a jail term that is significantly harsher than that offered in the plea. Regardless of how one feels about the plea offer or the ultimate sentence after trial, an explanation of the disparity is required. Without it, a conclusion that defendant is being punished for exercising his or her right to a trial is ineluctable and reflects badly on the court. Therefore, I dissent.

Defendant was charged with rape in the first degree, first-degree course of sexual conduct against a child and lesser charges relating to his criminal actions — serious charges indeed. However, during the two years that the case was awaiting trial, the prosecution repeatedly offered a disposition of no prison time. Indeed, the prosecutor put before the trial court an offer of probation in return for a plea of guilty to rape in the second degree. The court expressed no objection to such a resolution at that time. Defendant asked for time to consider the offer, but eventually rejected it.

Following conviction, and at the time of original sentencing, the victim made an impact statement and the prosecution asked that the maximum sentence be imposed by the court. Defendant was accompanied by numerous family and friends at sentencing, and presented over 40 letters of support detailing his life and accomplishments. He had no criminal history and the presentence report was noted by the court to be very favorable to him. Before imposing sentence, the court, stating that no sentence could “erase [the victim’s] pain” and hoping that she could “find comfort and closure,” imposed the maximum sentence of 20 years.

Following reversal of his sentence for reasons not germane to this discussion, defense counsel argued prior to resentencing that, given the plea offers of probation in this case, any sentence even close to the maximum term would be a gross disparity and call into question whether defendant was being punished for exercising his right to a trial. Nevertheless, the court imposed the most severe sentence permitted. It noted that it had originally imposed what it “felt was the appropriate sentence,” but did not comment on why a sentence of probation before trial became a maximum sentence of imprisonment afterwards.

It goes without saying that plea bargaining is part of our criminal justice system (Bordenkircher v Hayes, 434 US 357 [1978]). And we have said that during the bargaining process, the State may encourage a guilty plea by offering certain benefits, such as reduced exposure to the potential maximum sentence otherwise available, notwithstanding the fact that this has the effect of discouraging a defendant’s assertion of his right to a trial (see People v Pena, 50 NY2d 400 [1980]). It follows that the fact that a sentence imposed after trial is greater than that offered during a plea negotiation is no clear indication that the defendant is being punished for asserting his right to proceed to trial. “Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea” (Pena, 50 NY2d at 412 [emphasis and citations omitted]). However, it is equally true that if a defendant refuses to plead guilty and goes to trial, retaliation or vindictiveness may play no role in sentencing following a conviction (see Corbitt v New Jersey, 439 US 212 [1978]). The conventional concerns in sentencing, which include the considerations of deterrence, rehabilitation, retribution, and isolation, must be the factors weighed when sentence is imposed (see People v Suitte, 90 AD2d 80 [2d Dept 1982]).

The “presumption of vindictiveness” of a sentence arose out of the United States Supreme Court case North Carolina v Pearce (395 US 711 [1969]). There the defendant, Pearce, was convicted in a North Carolina court of assault with intent to rape and sentenced to serve 12 to 15 years in prison; in a companion case, the defendant, Rice, pleaded guilty to four charges of burglary and was sentenced in an Alabama court to serve a total of 10 years. After having served several years, Pearce was granted a new trial because a confession used against him was held to have been obtained in violation of his constitutional right not to be compelled to be a witness against himself; Rice’s conviction was set aside because, although he was indigent, he had not been provided with a court-appointed lawyer at the time he made his guilty plea. Both were re-tried and again convicted. Rice’s sentence was increased to 25 years, and no credit was given for time he had previously served; Pearce was sentenced to eight years which, when added to the time he had already served, amounted to a longer sentence than originally imposed. Because in neither case did the record contain any justification for the increased sentence, the United States Supreme Court reversed the sentences as being unconstitutionally vindictive.

This Court adopted the Pearce presumption in cases where a defendant is successful on appeal and after a retrial receives a much greater sentence than his original one (see People v Van Pelt, 76 NY2d 156 [1990]). The majority chooses to use the distinction between a retrial following a successful appeal and a mere offer followed by a trial to distinguish this case. But to me, this makes no sense. The issue is vindictiveness, not procedural routes.

New York appellate courts have routinely reduced sentences in cases in which the disparity between the plea offer and the imposed sentence was great. For example, in People v Brown (70 AD2d 505, 505-506 [1st Dept 1979]), the Court reduced a sentence where there was a disparity between the plea offer of 3V3 to 10 years and imposed sentence of 8 to 24 years. The Court found the sentence “create [d] the appearance that the defendant was being punished for proceeding to verdict, rather than receiving merely the sentence which his crime and record justified” {id.). In People v Cosme (203 AD2d 375 [2d Dept 1994]), the Court reduced a sentence to 15 years to life because of the disparity between plea offer of 8 years to life and imposed sentenced of 25 years to life. While those Courts may have done so through their interest of justice jurisdiction, I suggest that this Court’s authority — as a matter of law — can, has and should be used to require an explanation in cases such as the one before us.

The difference between the sentences in this case is glaring. A court cannot claim to be surprised by testimony in a rape case that has been pending before it since the time of its indictment. There is no showing in this record that the sexual assault, serious as it was, merited a choice between letting the alleged perpetrator walk the streets following a sentence of probation or 20 years in jail. An explanation, hopefully a reasonable one, is necessary. Had the court indicated the basis for the increased sentence, this Court may have considered this information sufficient to render the sentence “non-vindictive.” With a ten to twentyfold increase in sentence, the sentencing court should “at a minimum state on the record the additional facts which emerged . . . that changed the court’s viewpoint on sentencing, and how those matters factored into the court’s decision” (Longley v State, 902 So 2d 925, 929 [Fla Dist Ct App 2005]).

For these reasons, I would reverse the imposition of the sentence and remit the matter to the trial court for resentencing, this time with an explanation for the disparity, if any.

Judges Rivera, Abdus-Salaam, Stein and Fahey concur; Judge Pigott dissents in an opinion.

Order affirmed.


author: Abdus-Salaam, J.

text:
    [42 NE3d 670, 21 NYS3d 173]
    John Tipaldo, Respondent, v Christopher Lynn, as Commissioner of the Department of Transportation for the City of New York, et al., Appellants.
    Argued September 16, 2015;
    decided October 22, 2015

      POINTS OF COUNSEL

      Zachary W. Carter, Corporation Counsel, New York City {Marta Ross, Richard Bearing and Larry A. Sonnenshein of counsel), for appellants.
    I. John Tipaldo’s Civil Service Law § 75-b (2) claim must be dismissed because he failed to satisfy the statute’s mandatory internal reporting requirement. (Matter of State of New York v John S., 23 NY3d 326; State of New York v Patricia II., 6 NY3d 160; Matter of Jewett v Luau-Nyack Corp., 31 NY2d 298; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Matter of Pokoik v Department of Health Servs., County of Suffolk, 72 NY2d 708; Matter of Green-berg v New York City Tr. Auth., 7 NY3d 139; Krohn v New York City Police Dept., 2 NY3d 329; Sharapata v Town of Islip, 56 NY2d 332; Brohman v New York Convention Ctr. Operating Corp., 293 AD2d 299; Hastie v State Univ. of N.Y. [SUNY] Coll. of Agric. & Tech. at Morrisville, 74 AD3d 1547, 16 NY3d 701.) II. In the alternative, the award of predecision interest to John Tipaldo should be vacated, because Civil Service Law § 75-b does not authorize that relief. (Scaduto v Restaurant Assoc. Indus., 180 AD2d 458; Collette v St. Luke’s Roosevelt Hosp., 132 F Supp 2d 256; Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21; Matter of Bello v Roswell Park Cancer Inst., 5 NY3d 170; Manufacturer’s & Traders Trust Co. v Reliance Ins. Co., 8 NY3d 583; Metwaly v International Bus. Machs. Corp., 97 AD3d 514; Miller v Nassau County Civ. Serv. Commn., 85 AD3d 745, 18 NY3d 804; Matter of Greenberg v New York City Tr. Auth., 7 NY3d 139.)

      Pollack, Pollack, Isaac & DeCicco, LLP, New York City {Lewis Rosenberg and Brian J. Isaac of counsel), and Ginarte O’Dwyer

      Gonzalez Gallardo & Winograd, LLP, for respondent.
    I. Plaintiff met the reporting requirements and had standing to bring this action; the Appellate Division properly interpreted the statute. (O’Neill v New York Univ., 97 AD3d 199; Weiner v McGraw-Hill, Inc., 57 NY2d 458; Gilberg v Barbieri, 53 NY2d 285; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65; B. R. DeWitt, Inc. v Hall, 19 NY2d 141; Kaufman v Eli Lilly & Co., 65 NY2d 449; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481; D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246; Ryan v New York Tel. Co., 62 NY2d 494.) II. The City of New York is estopped from claiming that John Tipaldo’s adherence to its rules constitutes a failure to comply with a statute designed to protect him from retaliation. (Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126; Ceely v New York City Health & Hosps. Corp., 162 AD2d 492; Andersen v Long Is. R. R., 88 AD2d 328; Allen v Board of Educ. of Union Free School Dist. No. 20, 168 AD2d 403; Henry Boeckmann, Jr. & Assoc. v Board of Educ., Hempstead Union Free School Dist. No. 1, 207 AD2d 773; Brown v City of New York, 264 AD2d 493; Jeshurin v Liberty Lines Tr., 191 AD2d 412; Arachy v State of New York, 196 AD2d 625; Vandermast v New York City Tr. Auth., 71 AD3d 1127.) III. John Tipaldo did comply with the terms of the statute. (Simon v Mehryari, 16 AD3d 664; Damas v Valdes, 84 AD3d 87.) IV. Predetermination interest was properly awarded. (Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21; Loeffler v Frank, 486 US 549; Matter of Bello v Roswell Park Cancer Inst., 5 NY3d 170; Scaduto v Restaurant Assoc. Indus., 180 AD2d 458; Gierlinger v Gleason, 160 F3d 858; Matter of Greenberg v New York City Tr. Auth., 7 NY3d 139; Matter of Lewis v Kelly, 21 Misc 3d 1139[A], 2008 NY Slip Op 52423[U]; Hoffman v Altana, Inc., 198 AD2d 210; Kraus v New Rochelle Hosp. Med. Ctr., 216 AD2d 360.)
   OPINION OF THE COURT

Abdus-Salaam, J.

In this whistleblower action, we are faced with two issues: First, whether plaintiff John Tipaldo made a good faith effort to comply with the reporting requirements of Civil Service Law § 75-b (2) (b); and second, whether prejudgment interest is available under Civil Service Law § 75-b and Labor Law § 740 (5). For the reasons that follow, we hold that plaintiff made a good faith effort to comply with the statute, and that prejudgment interest is available in actions of this kind.

L

Plaintiff was employed by New York City’s Department of Transportation (DOT) and served as the DOT’s Acting Assistant Commissioner for Planning and Engineering. He was apparently promised that at some point that position would become permanent and be accompanied by a significant pay increase. While he held that position plaintiff supervised the Queensborough Bridge Project which involved procuring a variety of street signs, including “don’t honk” signs to advise motorists of possible fines. Plaintiff discovered an alleged scheme by his superiors, defendants Christopher Lynn, then-Commissioner of the DOT, and Richard Malchow, then-First Deputy Commissioner of the DOT, to award a signage contract to Lynn’s acquaintance in violation of the City’s public bidding rules. The day after placing an order for the signs from Lynn’s acquaintance on November 6, 1996, a meeting was held informing DOT employees, including Tipaldo, that the signs had been purchased. According to plaintiff, he and other employees questioned the legality of the process and the DOT employees whose signatures were required to authorize the purchase refused to sign the authorization. The following day, November 8, Lynn and Malchow then solicited bids from the public. Following the delivery and installment of the signs, the DOT received several lower bids compared to the $6,000 paid to Lynn’s acquaintance. Defendants thereafter allegedly created a backdated memorandum stating that the need for the signs was “urgent” and that the order must be placed immediately, rather than go through the bidding process.

Plaintiff informed his immediate supervisors about defendants’ alleged misconduct. One or two business days later, plaintiff reported defendants’ alleged actions to the Office of the Inspector General for the DOT and requested an investigation. Plaintiff claims that shortly after filing his report with the Inspector General, Lynn and Malchow retaliated against him by excluding him from meetings, removing him from supervising and managing several projects, and publicly making negative comments about him. Eventually, plaintiff was removed from his position and demoted.

Plaintiff then commenced this action in 1997 pursuant to Civil Service Law § 75-b. He alleged that he was retaliated against for reporting improper governmental activity and sought a permanent injunction, reinstatement, all lost compensation, punitive damages, attorney’s fees, and costs. Defendants moved for summary judgment dismissing the complaint, arguing that plaintiff failed to comply with Civil Service Law § 75-b by not reporting the allegedly wrongful actions to the appointing authority (which under these facts were defendants) before contacting the Inspector General’s office. Plaintiff cross-moved for summary judgment on liability.

Supreme Court granted defendants’ motion for summary judgment, denied plaintiff’s cross motion, and dismissed the complaint (2006 NY Slip Op 30746[U] [2006]). The court agreed with defendants that plaintiff failed to state a cause of action by not reporting the defendants’ alleged misconduct to an appointing authority. On appeal, the Appellate Division reversed, and granted plaintiff’s motion for summary judgment, stating, “[t]here is no dispute that retaliatory actions were taken against plaintiff, and although a cause of action pursuant to the subject statute requires plaintiff to have first reported the alleged violation to the internal [DOT] ‘appointing authority,’ here, that was defendants” (48 AD3d 361, 361-362 [1st Dept 2008] [citation omitted]). The Court determined that “plaintiff’s good faith efforts in the manner and timing of his reporting, first informally to his immediate supervisors, and then soon thereafter to the [DOI], satisfactorily met the requirements of Civil Service Law § 75-b (2)” {id. at 362).

Thereafter, a bench trial on damages was conducted. Plaintiff’s expert Dr. Anne Bynoe testified, concluding that if plaintiff had not been demoted, he would have been permanently appointed to Assistant Commissioner for Planning, receiving a $25,000 raise, amounting to an $81,000 salary at the time of demotion. Using the salary information of two comparators (DOT managers that Dr. Bynoe determined were similarly situated to plaintiff in experience and job responsibilities), Dr. Bynoe concluded that over the 10 years since plaintiff’s demotion, plaintiff lost approximately $388,243 in earnings, or $662,721 with 9% statutory interest. Defendants did not present any evidence to refute Dr. Bynoe’s conclusions.

Supreme Court then directed judgment to be entered in favor of plaintiff. However, the court denied plaintiff’s claim for interest, stating that “neither C[ivil ]S[ervice ]L[aw] § 75-b nor Labor Law § 740 makes any provision for interest.” The court directed that defendants pay plaintiff $175,000, rather than the amount computed by Dr. Bynoe.

The Appellate Division modified the judgment and, as so modified, affirmed (76 AD3d 477 [1st Dept 2010]). The Court determined that Supreme Court failed to explain how it calculated the award and did not address plaintiff’s requests for consequential damages or reinstatement to an equivalent position. The Court determined that the only expert opinion before it was plaintiff’s, and it saw no reason to disturb Dr. Bynoe’s conclusions on the back pay owed to plaintiff based upon the raise he was to receive with the anticipated promotion. The Court determined that Labor Law § 740 (5) allows whistleblower plaintiffs who sue under Civil Service Law § 75-b to seek prejudgment interest, because the purpose of Civil Service Law § 75-b is to “remediat[e] adverse employment actions which, if allowed, would undermine an important public policy, that is, encouraging public employees to expose fraud, waste and other squandering of the public fisc” (id. at 482). Additionally, the Court ordered defendants to reinstate plaintiff to the same or equivalent position he held before the retaliatory personnel action.

Supreme Court then entered a judgment awarding plaintiff $388,243 in back pay, $274,478 in interest, $152,521.81 in attorney’s fees, and $985 in costs. The judgment also directed defendants to promote plaintiff to an Assistant Commissioner position, with a salary of $157,000, effective August 24, 2010. This Court granted defendants’ motion for leave to appeal from the judgment, bringing up for review the prior non-final 2008 and 2010 Appellate Division orders. We now affirm.

IL

The first issue is whether plaintiff complied with Civil Service Law § 75-b, the state whistleblower statute.

Civil Service Law § 75-b (2) (a) (ii) provides that adverse employment action may not be taken against a public employee based upon his or her disclosure of information “which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.” “Improper governmental action” is defined as:

“any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent’s official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation” (Civil Service Law § 75-b [2] [a]).

Prior to reporting what may be “improper governmental action,” an employee is to make “a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety” (Civil Service Law § 75-b [2] [b]). An “appointing authority” is the “officer, commission or body having the power of appointment to subordinate positions” (Civil Service Law § 2 [9]). Based upon the legislative history, the purpose of the reporting requirement was to allow the employer the opportunity to cease the violations by providing internal notice prior to disclosing misconduct to an outside agency (see Budget Report, Bill Jacket, L 1984, ch 660 at 7). Following the report of a complaint to the appointing authority, pursuant to a New York City mayoral executive order, it is the authority’s obligation to report the alleged improper governmental action to the Department of Investigation (see NY City Executive Order No. 16 of 1978 § 4 [d]). The executive order also requires an employee to immediately report misconduct or face disciplinary action, including possible termination.

Because plaintiff’s appointing authorities were Lynn and Malchow, he understandably did not report their alleged misconduct to them. The scheme in which Lynn and Malchow purportedly engaged was quite deliberate. After entering into a contract with Lynn’s acquaintance for the signs, they allegedly attempted to cover their tracks by publishing a notice seeking public bids and later releasing a memorandum stating that an immediate need for the signs required bypassing the normal bidding process. Thus, Lynn and Malchow would not likely have been receptive to plaintiff’s complaints or reported themselves to the Department of Investigation. Notably, defendants concede that there was no duly designated individual to whom plaintiff could have reported his claims.

Under these particular circumstances, strict compliance with the reporting requirements of Civil Service Law § 75-b would not serve the purpose of the statute. Rather, courts should use their discretion in determining whether the overall actions of the plaintiff constitute a good faith effort to report the misconduct. In cases such as this — where the appointing authority is the one engaging in the alleged misconduct — an employee’s good faith effort to report the misconduct should be evaluated with attention to the employee’s practical inability to report to the appointing authority. The “good faith” provision in the statute affords courts the discretion to determine whether a plaintiff has met its requirements and appears to adequately account for situations like the one presented here.

Here, we hold that plaintiff complied with the statutory reporting requirement by informing his immediate supervisors of the misconduct and thereafter reporting the misconduct to the DOT Inspector General. Whistleblowing is encouraged to prevent employer misconduct and provide appropriate remedies when it occurs. Employees in situations like plaintiff’s should not be required to report to the appointing authority where such a report would prove impractical and possibly impede prompt resolution of the matter. Notably, here, plaintiff believed the appointing authority was on notice of the alleged improper governmental action, based on plaintiff and other employees’ expression of concern after a DOT meeting, DOT employees’ refusal to approve the appointing authority’s purchase, and the appointing authority’s subsequent solicitation of bids followed by the issuance of a backdated memorandum claiming that the process needed to be expedited. Additionally, in view of the requirement, set forth in both Executive Order No. 16 and the DOT employee handbook, that employees such as plaintiff disclose misconduct to the DOT Inspector General directly and without undue delay or face possible termination of their employment, we cannot say that plaintiff lacked “good faith” in reporting to his immediate supervisors only one or two business days before he reported his allegations to the DOT Inspector General. Therefore, given the conditions plaintiff was facing, an overall view of his actions demonstrates good faith compliance with Civil Service Law § 75-b.

III.

The second issue is whether the 2010 Appellate Division order properly determined that plaintiff is entitled to prejudgment interest.

The Civil Service Law provides that a public employee not subject to an arbitration agreement or a collective bargaining agreement is entitled to commence his or her action “under the same terms and conditions as set forth in article twenty-C of the labor law” (Civil Service Law § 75-b [3] [c]). The “terms and conditions” in that section incorporate the remedies in Labor Law § 740 (5). That section states that the remedies available to employees who bring claims for retaliation include:

“(a) an injunction to restrain continued violation of this section;
“(b) the reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent position;
“(c) the reinstatement of full fringe benefits and seniority rights;
“(d) the compensation for lost wages, benefits and other remuneration; and
“(e) the payment by the employer of reasonable costs, disbursements, and attorney’s fees” (Labor Law § 740 [5]).

The terms “compensation” and “remuneration” are not defined by the statute (see Civil Service Law § 75-b).

This Court has held that where a statute does not specifically list interest as recoverable, interest may be available where a statute’s legislative intent is to make its victims whole and its language does not limit the recovery available. In Matter of Aurecchione v New York State Div. of Human Rights, we concluded that “[a]lthough the Human Rights Law, like title VII, makes no specific reference to pre-determination interest, a liberal reading of the statute is explicitly mandated to effectuate the statute’s intent” (98 NY2d 21, 26 [2002]). Thus, because the Human Rights Law permits individuals subject to employment discrimination to recover “compensatory damages,” we concluded that allowing for prejudgment interest was consistent with the “central concern” of the statute, which was “to make such victims ‘whole’ ” (id.). In Matter of Greenberg v New York City Tr. Auth., we held that although Workers’ Compensation Law § 120 did not provide for prejudgment interest, such interest was permissible because, like the Human Rights Law, section 120 was an antidiscrimination statute with an intent to fully compensate those discriminated against (see 7 NY3d 139, 142 [2006]). That section states that an employee “shall be compensated by his or her employer for any loss of compensation,” which we concluded provided for a “general right to compensation,” especially since its language that an employee is “to be restored to the position or privileges [he or she] would have had but for the discrimination” showed a “generalized intention to undo harm done” (id. at 142-143 [internal quotation marks omitted]).

Conversely, in Matter of Bello v Roswell Park Cancer Inst, we held that no prejudgment interest was available because Civil Service Law § 77 did not provide for a “general right to compensation” (5 NY3d 170, 173 [2005] [internal quotation marks omitted]). The section provided that an employee subject to unlawful removal:

“shall be entitled to receive . . . salary or compensation which he [or she] would have been entitled by law to have received in such position but for such unlawful removal, from the date of such unlawful removal to the date of such restoration, less the amount of any unemployment insurance benefits he [or she] may have received during such period” (id. at 172-173; see also Civil Service Law §77).

This Court concluded that this language restricted recovery to salary or compensation and that, in this context, compensation “refers to bonuses or other nonsalary forms of payment” (see id. at 173). Additionally, we hesitated in reading prejudgment interest into the statute because Civil Service Law § 77, which allows for monetary recovery against the State or its civil divisions, “waives the State’s sovereign immunity” and “[s]uch waivers are to be strictly construed, [with] ‘waiver of immunity by inference being disfavored’ ” (id. at 173).

Here, an overall view of the comprehensive package of remedies listed in Labor Law § 740 (5), including undefined “compensation” and “remuneration,” demonstrates that the legislature sought to make a whistleblowing plaintiff whole, which would include an award of prejudgment interest. The remedies in Labor Law § 740 (5) are not as limited as Civil Service Law § 77, the statute evaluated in Matter of Bello. There was no room under Civil Service Law § 77 to consider whether prejudgment interest may be included. In contrast, Labor Law § 740 (5) provides courts with discretion to determine what is considered “compensation” and “remuneration.” Further, the remedies listed in the statute appear to seek to make a whistleblowing plaintiff whole; awarding prejudgment interest would serve that purpose. By demoting plaintiff rather than awarding him a planned promotion and significant raise, defendants deprived plaintiff of access to what would have been a higher salary for a period of over 10 years. Awarding back pay with interest would serve to make plaintiff whole; thus, he is entitled to such a recovery.

With respect to the amount of prejudgment interest awarded, plaintiff’s expert Dr. Anne Bynoe testified during the damages trial and described the damages owed to plaintiff based upon his position and the promotion he was to receive using two comparators. Dr. Bynoe took into consideration inflation and interest when making her determination, and defendants failed to refute her conclusions. Therefore, as plaintiff is entitled to recover prejudgment interest and his expert’s testimony concerning the amount of back pay, consequential damages and interest he is owed was unrefuted, the denial of prejudgment interest was an abuse of discretion.

Additionally, because reinstatement to the same or equivalent position is a remedy specifically provided by Labor Law § 740 (5), the Appellate Division did not err in providing that remedy given the liability determination that plaintiff was retaliated against for reporting Lynn and Malchow’s misconduct.

m

Under the circumstances of this case, namely that plaintiff’s appointing authorities were the individuals whom he alleged engaged in misconduct, plaintiff’s overall conduct demonstrates good faith compliance with Civil Service Law § 75-b (2) (b). Additionally, because Labor Law § 740 (5) indicates an intention to make a whistleblowing plaintiff whole, prejudgment interest was properly awarded. Thus, the judgment appealed from and orders of the Appellate Division sought to be reviewed should be affirmed, with costs.

Judges Pigott, Rivera, Stein and Fahey concur; Chief Judge Lippman taking no part.

Judgment appealed from and orders of the Appellate Division sought to be reviewed affirmed, with costs.

       Meanwhile, following an investigation, the Inspector General issued his determination, concluding that plaintiff “suffered an adverse personnel action taken in retaliation for his having reported to the Department of Investigation [DOI] information concerning conduct which he knew or reasonably believed to involve an abuse of authority on the part of another City official.” The report recommended that plaintiff be reinstated to his former position or a comparable position. Defendants initially declined to reinstate plaintiff, but later issued an order of compromise, pursuant to CPLR 3221, offering to reinstate him to a comparable position with back pay and benefits, which plaintiff rejected.