author: Rivera, J. Pigott, J.

text:
    [11 NE3d 177, 988 NYS2d 104]
    The People of the State of New York, Respondent, v Merlin G. Sage, Appellant.
    Argued February 11, 2014;
    decided April 1, 2014

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Drew R. DuBrin of counsel), for appellant.
    The trial court erred by refusing to submit to the jury the questions of whether the People’s key witness was an accomplice and, if so, whether his testimony was corroborated. (People v Vataj, 121 AD2d 756, 69 NY2d 985; People v Dorler, 53 NY2d 831; People v Diaz, 19 NY2d 547; People v Werner, 55 AD2d 317; People v Crimmins, 36 NY2d 230; People v Berger, 52 NY2d 214; People v Sweet, 78 NY2d 263; People v Cona, 49 NY2d 26; People v Jones, 73 NY2d 902; People v Basch, 36 NY2d 154.)

      Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), for respondent.
    Defendant was not entitled to have the jury instructed to consider whether one of the People’s witnesses was an accomplice and, if so, whether his testimony was corroborated. (People v Beaudet, 32 NY2d 371; People v Wheatman, 31 NY2d 12; People v White, 26 NY2d 276; People v Jones, 73 NY2d 902; People v Sweet, 78 NY2d 263; People v McKenzie, 19 NY3d 463; People v Basch, 36 NY2d 154; People v Garcia, 20 NY3d 317; People v Evans, 83 NY2d 934; People v Dorler, 53 NY2d 831.)
   OPINION OF THE COURT

Rivera, J.

The sole issue on this appeal arising from the defendant’s conviction for manslaughter in the first degree is whether the trial court committed reversible error by failing to charge the jury with an “accomplice-in-fact” instruction for the People’s key witness. We conclude that the evidence created a factual issue as to whether the witness was an accomplice and that the failure to instruct the jury was not harmless. The order of the Appellate Division should be reversed.

L

The defendant was charged by Monroe County indictment with murder in the second degree (see Penal Law § 125.25 [1]), stemming from the early-morning beating of Hector Merced on November 17, 2007. The People presented physical and testimonial evidence at trial seeking to establish that the defendant caused the death of Merced when he, along with two other men, viciously beat Merced, and shortly thereafter, on his own, forcefully struck him multiple times with a mop handle. The defendant disputed his involvement in the beating death of Merced and sought to impugn the testimony of the People’s key eyewitness, Andrew Mogavero, casting him as an accomplice to the crime.

At trial, Mogavero presented a story of how he observed, but did not participate in, the entire series of attacks on Merced that eventually led to his death. He testified that on the night of the murder he had gone out drinking with the defendant and Damion Clarke when they met Merced at a bar. Thereafter, they all left to go drink at the apartment of Miguel Velez, an acquaintance of the defendant. According to Mogavero, within 20 minutes of arriving at the apartment, Clarke and Merced got into a “heated argument.” Clarke took off his shirt, yelled “[e]nough of the disrespect,” and head-butted Merced. Mogavero claimed that he had come back from the bathroom just in time to witness the incident and that he did not know why the men were fighting. Mogavero then claimed that Merced “came at me aggressively.” Mogavero punched Merced twice to protect himself, hitting Merced in the face and neck.

Mogavero testified that the beating of Merced then began in earnest, with the defendant, Clarke and Velez kicking and punching Merced. At some point Merced fell to the floor and the defendant, Clarke and Velez continued to punch and kick him, inflicting blows around the head and body. During the beating Mogavero saw Clarke jump and land on Merced’s head with both feet and then hit him on the head with a large stereo speaker. Mogavero further testified that he observed Clarke try to defecate on Merced before the defendant urinated on him. According to Mogavero, Merced moved very little and did not attempt to get up.

Mogavero denied participation in the beating, claiming he only punched Merced twice at the beginning, and then he backed up and kept out of it because he did not want the others to turn on him. He testified that he decided to get Merced out of the apartment once the others had stopped beating him. Mogavero testified that he picked Merced up off the floor and, along with Velez, carried him across the street and placed his body on the porch of a neighbor’s house, which was under renovation. Mogavero claimed that, as they carried Merced to the porch, he was bleeding from his head and face and that he slumped over when they left him seated on the porch.

Mogavero testified that he watched the defendant walk toward the porch, and strike Merced forcefully with a mop handle. He testified that he saw the defendant swing the handle at Merced’s head and neck three times “[l]ike a baseball bat.” Mogavero claimed that he walked back to the porch and tried to stop the defendant, describing how he “kind of grabbed [the defendant]” by the shirt to “kind of pull[ ] him back” from Merced.

According to Mogavero, he and the defendant left the scene of the beating by separate routes and went to the defendant’s home, which was a short distance away. As soon as he arrived there, Mogavero changed out of his clothes because they were stained with Merced’s blood, placed the clothes in a garbage bag, and left them in a bedroom. He then “[j]ust hung out” at the defendant’s home for a couple of hours, eventually falling asleep.

On cross-examination, the defense pointed to various inconsistencies between Mogavero’s in-court testimony and his previous statement to the police made the day after the beating. Defense counsel elicited from Mogavero that his written and signed statement only indicated that the defendant had urinated on Merced, and made no mention of the defendant punching or kicking him. Mogavero attempted to explain this inconsistency by claiming that he had told the police that the defendant kicked and punched Merced, but that he did not realize that the written statement was incomplete until he testified at the grand jury a few days after the murder. On cross-examination he also admitted that the beating took place in a small living room space and that he was “[a] matter of feet” away from the beating but did not intervene. Mogavero further admitted that although his mother lived four streets away from the defendant’s home, he did not go there after he left the scene of the beating.

The People’s forensic pathologist testified that the victim died of a subarachnoid hemorrhage, which he opined can be caused by blunt force trauma to the head and neck, such as punches, kicks, stomping, and the throwing of objects directly onto the head. However, he could not testify as to which of the many blows caused Merced’s death given the multiple blows inflicted on Merced. On cross-examination, he testified that a single blow to the head could cause a subarachnoid hemorrhage.

The People also offered into evidence the damaged mop handle and pieces of the mop discovered near Merced’s body on the porch. The evidence established that Merced’s blood was on the mop handle and pieces. Defendant’s fingerprint was one of five recovered from the mop handle, and it was the only recovered fingerprint that allowed for a match to be made.

The People also read and submitted into evidence a written statement made by the defendant to the police approximately two days after the murder, wherein he described going out with the men and eventually going to the apartment. He denied participating in the beating and claimed that he had carried Merced out of the apartment, but did not see how Merced made it to the porch. He stated that he found a mop nearby and poked Merced with the mop handle three or four times and yelled at him to see “if he was all right.” In his statement the defendant described how Clarke had beaten, jumped on, and thrown the speaker on Merced. Defendant related that Clarke tried to defecate on Merced and told the defendant to urinate on Merced, which he did. The statement confirmed that Mogavero was with the defendant and the other men throughout the evening and at the apartment during the beating, that Mogavero had run to the defendant’s house shortly after the attack, that the day after the beating Clarke went to the defendant’s home where he told the defendant and Mogavero that Merced was dead and that he was going to go into hiding, that he advised them both to do the same, and that Mogavero then left the defendant’s home. The investigator who authenticated the statement testified that he asked the defendant about Mogavero and that the defendant told him “he never saw [Mogavero] do anything” to Merced. The defendant did not testify or call any witness in his defense.

At the charge conference, defense counsel requested an “accomplice as a question of fact” jury instruction with respect to Mogavero, arguing that Mogavero’s testimony, in conjunction with the testimony of the People’s expert concerning the possibility that a subarachnoid hemorrhage could be caused by one punch, raised a question of fact as to Mogavero’s involvement in the crime. Counsel argued that the jury should be able to consider Mogavero’s possible involvement as an accomplice when determining his credibility as a witness for the People. The People opposed the request, arguing, inter alia, that there was insufficient evidence that Mogavero had acted as an accomplice to the murder, and that Mogavero did not receive a benefit for testifying. County Court denied the defendant’s request. The jury thereafter acquitted the defendant of the murder charge, but found him guilty of the lesser included offense of manslaughter in the first degree.

As relevant here, the Appellate Division affirmed the conviction, concluding that the trial court had properly determined that Mogavero could not reasonably be considered to have participated in the crime, and that there was overwhelming evidence corroborating his testimony (98 AD3d 1254 [2012]). The defendant appeals pursuant to leave granted by a Judge of this Court (21 NY3d 914 [2013]).

II.

The defendant argues on appeal that the trial court erred by not submitting to the jury the question of whether the People’s key witness, Mogavero, was an accomplice, and, if so, whether his testimony was sufficiently corroborated. The defendant contends that, viewed in his favor, the evidence reasonably demonstrates that Mogavero participated in the crime or in another offense based upon the same conduct constituting the crime, such as manslaughter in the first or second degree, intentional assault, reckless assault, or criminally negligent homicide. The defendant further argues that failure to submit the accomplice in fact charge is necessarily harmful, but regardless, the evidence of corroboration was not so overwhelming, and the proof of guilt was not so strong, that there is no significant probability that the verdict would have been different had the jury been properly charged. In this regard, the defendant contends that there is a significant probability that the trial court’s failure to submit the instruction contributed to the verdict.

The People assert that the defendant raises a mixed question of law and fact, over which we have limited powers of review. On the merits, the People argue that there is no reasonable view of the evidence that Mogavero was an accomplice. Alternatively, they claim that the trial court’s alleged failure to issue the requested instruction was harmless.

III.

An accomplice is “a witness in a criminal action who, according to the evidence adduced in such action, may reasonably be considered to have participated in: (a) [t]he offense charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2]). Under our criminal law, “[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]). Testimony of such a witness, marked by obvious self-interest, carries the potential for falsification to avoid prosecution (People v Sweet, 78 NY2d 263, 267 [1991] [“The law recognizes that accomplice testimony is inherently untrustworthy because those charged with a crime often seek to escape the consequences and curry favor with officials by implicating others”]; People v Berger, 52 NY2d 214, 219 [1981] [“Courts have thus exercised the utmost caution in dealing with accomplice testimony, especially when the testimony is exchanged for immunity or other favorable prosecutorial consideration”]; People v Cona, 49 NY2d 26, 35-36 [1979] [“The accomplice corroboration rule is premised upon a legislative determination that the testimony of individuals who may themselves be criminally liable is inherently suspect. This is deemed to be true because such individuals may be subject to pressures impelling them to color testimony in order to protect themselves by belittling the actual extent of their involvement in the criminal enterprise at the expense of others”]). Indeed, “[t]he common law traditionally has viewed criminal accomplice testimony with a ‘suspicious eye’ ” (Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, CPL 60.22).

Where the court determines on the evidence that a witness comes within the meaning of CPL 60.22 (2), the witness is an accomplice as a matter of law, and the court must instruct the jury that the witness is an accomplice and subject to the statutory corroboration requirement (see Sweet, 78 NY2d at 268; People v Minarich, 46 NY2d 970, 971 [1979]; People v Beaudet, 32 NY2d 371, 378 [1973]; People v Jenner, 29 NY2d 695 [1971]; see also CJI2d[NY] Accomplice As A Matter of Law [rev Jan. 2011], available at http://www.nycourts.gov/judges/cji/1-General/CJI2d.Accomplice_law.pdf [accessed Mar. 9, 2014] [“Under our law, (the witness) is an accomplice because there is evidence that he/she participated in (and was convicted of) a crime based upon conduct involved in the allegations here against the defendant”]). In a case where the court concludes that a factual dispute exists as to whether the witness is an accomplice under the statute, the factual question is left for the jury to resolve (see People v Vataj, 69 NY2d 985, 987 [1987]; People v Dorler, 53 NY2d 831, 832-833 [1981]; People v Arce, 42 NY2d 179, 186 [1977]; People v Basch, 36 NY2d 154, 157 [1975]; People v Wheatman, 31 NY2d 12, 23 [1972]; cf. People v Jones, 73 NY2d 902, 903 [1989] [holding that no accomplice in fact instruction was warranted because there was no evidence from which it can be reasonably inferred that the alleged accomplice had participated in the planning or execution of the crimes]). The court must instruct the jury to apply the corroboration requirement only if the jury makes a factual finding that the witness is an accomplice in fact (see CJI2d[NY] Accomplice As A Question of Fact [rev Jan. 2011], available at http://www.nycourts.gov/judges/cji/l-General/CJI2d.Accomplice_Fact.pdf [accessed Mar. 9, 2014]; see also CPL 60.22).

We have found a witness is an accomplice as a matter of law where, for example, the witness pleads guilty to aiding the defendant in the commission of the crime (Sweet, 78 NY2d at 268), or otherwise confirms participation or assisting in the charged crime (Minarich, 46 NY2d at 971; Beaudet, 32 NY2d at 377-378; Jenner, 29 NY2d at 696).

In contrast, the witness may be found to be an accomplice in fact where there are factual disputes as to the witness’s participation or intent, such that “different inferences may reasonably be drawn” from the evidence as to the witness’s role as an accomplice (Basch, 36 NY2d at 157; cf. Jones, 73 NY2d at 903). The factfinder must choose which of the competing inferences to accept. For example, we have held that whether a witness is an accomplice is an issue of fact where direct proof was lacking as to the witness’s participation in the crime (Basch, 36 NY2d at 158). This fact-sensitive determination depends on the evidence presented at trial as to the crime charged (see e.g. id. at 157-159; see also Vataj, 69 NY2d at 987). The defendant bears the burden of establishing that the witness is an accomplice (see e.g. Basch, 36 NY2d at 159; see also People v Rossi, 11 NY2d 379, 383 [1962]).

The propriety of a jury instruction is reviewable as a matter of law (see CPL 470.05 [2] [“For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same”]; see also People v Medina, 18 NY3d 98, 104 [2011], quoting People v Gray, 86 NY2d 10, 19 [1995]; William C. Donnino, New York Court of Appeals on Criminal Law § 10:23 at 246-247 [3d ed 2011]). We therefore review the defendant’s claim for reversible error.

Here, the defendant asserts that the court improperly denied his request for an accomplice in fact instruction because there was sufficient evidence to create a factual question as to Mogavero’s participation in the beating death of Merced. We agree with the defendant that the evidence adduced at trial created a question as to Mogavero’s role in the crime, and therefore the trial court should have charged the jury with an accomplice in fact instruction (see Jones, 73 NY2d at 903 [“Where differing inferences may reasonably be drawn as to whether a witness participated in the offenses an accomplice-in-fact instruction must be given”]). Failure to do so in this case was not harmless and constitutes reversible error (see generally People v Crimmins, 36 NY2d 230, 241 [1975]; see also Minarich, 46 NY2d at 971; Jenner, 29 NY2d at 697; People v Maynard, 299 AD2d 303 [1st Dept 2002], lv denied 99 NY2d 630 [2003]; People v Torres, 160 AD2d 746 [2d Dept 1990], lv denied 76 NY2d 897 [1990]; People v Conklin, 139 AD2d 156 [3d Dept 1988], lv denied 72 NY2d 1044 [1988]; People v Adams, 185 AD2d 680 [4th Dept 1992], lv denied 80 NY2d 926 [1992]; People v Pelc, 101 AD2d 995 [4th Dept 1984]).

IV

Here, there is ample record evidence “from which it can be reasonably inferred” that Mogavero participated in Merced’s murder, or “[a]n offense based upon the same or some of the same facts or conduct which constitute” the murder (CPL 60.22 [2]). At a minimum, “different inferences may reasonably be drawn” from Mogavero’s testimony and the forensic evidence, as to Mogavero’s role as an accomplice (Basch, 36 NY2d at 157; cf. Jones, 73 NY2d at 903).

Mogavero admitted to his presence before, during and after the fatal attack on Merced, and to his close proximity to Merced and the other men throughout the entire beating. He admitted to punching Merced twice, to the head and neck, which the defendant argued could have caused or contributed to Merced’s fatal injuries. This argument was supported by testimony from the forensic pathologist who admitted on cross-examination that one blow could have caused a subarachnoid hemorrhage and that a subarachnoid hemorrhage was at least one of the causes of death. The pathologist further testified that a “series of blows are considered to be all contributory to the subarachnoid hemorrhage,” but that he could not say which blow actually caused the hemorrhage, and whether the first or last blows caused the greatest harm.

Mogavero also testified that he assisted in moving Merced away from the scene of the beating and that, along with Velez, he carried Merced out of the apartment and placed his body on the porch of the neighboring house. The jury could have determined that Mogavero, not the defendant, hit Merced with the mop handle. The jury also could have determined that Mogavero carried Merced to the porch to cover up the crime rather than to assist Merced, as Mogavero claimed. Moreover, the jury could have considered, as evidence of Mogavero’s consciousness of guilt, his testimony that he went with the defendant to the defendant’s home immediately after seeing defendant beat Merced with a mop handle, changed out of his bloodstained clothes, put them in a garbage bag, and promptly fell asleep. Mogavero’s delay in speaking to the police or talking to his parents also provided a basis for the jury to infer his involvement in the crime. That Mogavero denied participation in the actions that caused Merced’s death — the beating in the apartment and the attack on the porch with the mop handle— and his assertions that his sole physical act against Merced was done in self-defense when the victim came at him “aggressively,” presented disputed factual allegations which should have been left for the jury to consider in deciding whether Mogavero was an accomplice.

It is in no way surprising that an accomplice would claim innocence of criminal conduct or seek to minimize or distinguish the significance of the accomplice’s actions from those of the defendant (Sweet, 78 NY2d at 267). After all, a witness implicated in criminal action may be less than truthful about his or her own involvement and may aggrandize the criminal conduct of others in an effort to deflect scrutiny and avoid prosecution (see Sweet, 78 NY2d at 267; Berger, 52 NY2d at 219; Cona, 49 NY2d at 35-36).

V.

The People argue that even if the evidence supported a jury instruction on accomplice in fact, any error was harmless because there was “extensive” corroboration of Mogavero’s testimony and overwhelming evidence of the defendant’s guilt. However, the record does not support this argument because, although the People presented corroborative evidence, the jury could have discounted the witness’s testimony, determined he was not credible, and found the remaining evidence insufficient to find defendant guilty beyond a reasonable doubt. Thus, failure to instruct the jury to consider whether Mogavero was an accomplice was not harmless.

The quantum of evidence necessary to satisfy the statutory corroboration requirement is “enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth” (People v Reome, 15 NY3d 188, 192 [2010], quoting People v Dixon, 231 NY 111, 116 [1921]). The required corroboration need not prove the defendant’s guilt (Reome, 15 NY3d at 192), and it may be based on evidence that sufficiently harmonizes with the accomplice testimony so as to “furnish the necessary connection between defendant and the crime” (id. at 194, quoting Dixon, 231 NY at 116-117). Nevertheless, we have stated that corroborative evidence is such that when “read with the accomplice’s testimony, makes it more likely that the defendant committed the offense, and thus tends to connect him to it” (Reome, 15 NY3d at 194).

In this case, the proof of defendant’s guilt was not overwhelming for harmless error purposes. Mogavero was the People’s eyewitness to the defendant’s participation in the events in the apartment. It was Mogavero’s narrative, describing how the defendant joined Clarke and Velez in attacking Merced, that the People presented as evidence to the jury. It was Mogavero, and Mogavero alone, who identified the defendant as a participant in the beating. The People introduced the defendant’s statement to the police as a corroborating narrative of the incident, but this evidence contradicted Mogavero’s version of the defendant’s conduct. The defendant’s statement described that he was present during the beating and urinated on Merced, but it did not contain a single admission that the defendant struck Merced in the apartment. Instead, the defendant’s statement, like Mogavero’s testimony, identified Clarke as the individual who stomped on Merced and threw a speaker on his head.

The defendant’s statement aligns in some ways with Mogavero’s testimony that the defendant was present during the beating and urinated on Merced when he was on the floor, but, in other ways, that version conflicted with Mogavero’s testimony of the beating. Mogavero’s version, in which he detailed that the defendant, along with Clarke and Velez, inflicted upon Merced a “barrage of punches and kicks,” was in direct contrast with the defendant’s version. Significantly, on cross-examination, Mogavero admitted that his written and signed statement to the police lacked any reference to the defendant as having hit Merced during the beating in the apartment. Mogavero’s testimony that despite its absence from the written statement he did inform the police that the defendant beat Merced, and once he discovered that the statement was incomplete he sought to correct it, only further illustrates that Mogavero’s version was in dispute, and constituted evidence for the jury to consider in determining whether to believe Mogavero or the defendant (see Arce, 42 NY2d at 186; Basch, 36 NY2d at 157; see also Sweet, 78 NY2d at 266).

The People contend that Mogavero’s testimony that the defendant struck Merced three times with a mop handle after Mogavero carried Merced to the porch was corroborated by the evidence of the bruises on the body, the mop pieces found near Merced, and the defendant’s single fingerprint lifted off the mop handle. However, the parties heavily contested the proper inferences to be drawn from this evidence, including whether the mop was used in any attack, and, if so, who swung the mop, and whether Merced’s death was caused by blows from the mop.

The defendant disputed that he forcefully hit Merced with the mop handle and that Mogavero actually observed him strike Merced in such a way as to injure him. In his written statement to the police the defendant described how he picked up the mop handle and poked Merced “three or four times” to see “if he was all right”; actions not meant to harm Merced. During cross-examination of Mogavero, the defense challenged Mogavero’s testimony that he was in fact able to see the defendant swing the mop handle from where Mogavero was standing, or that he could measure the force used. While the fingerprint evidence confirmed that the defendant held the mop handle, it did not necessarily compel a finding that the defendant swung the mop handle or struck Merced with it. Further, as the People’s witness testified, because the other four fingerprints lifted from the mop handle lacked comparison value, meaning that they could not be tested to identify who if anyone else touched the handle, the fingerprint evidence failed to exclude Mogavero as someone who may have held the mop. By his own testimony, Mogavero admitted he went to the porch on two occasions, when he could have struck Merced.

The forensic evidence established that Merced suffered a beating occasioned by multiple blows. Nevertheless, the pathologist testified that he could not say which blow eventually caused his death, and that Merced might have been conscious even after the fatal blow had been inflicted. On cross-examination Mogavero admitted that he did not know if Merced was breathing and did not take his pulse when he put him on the porch. Thus, assuming the attack with the mop handle occurred as Mogavero described it, whether that attack was the cause of death was in factual dispute.

It is certainly possible that the jury, properly charged on whether to treat Mogavero as an accomplice, and, if so, how to consider his testimony, could have discounted his version of the beating and the attack on the porch. In that case, it was for the jury to decide whether the remaining evidence established the defendant’s guilt beyond a reasonable doubt. Where the jury could have chosen to discount the testimony of the People’s eyewitness and the proof of defendant’s guilt was not overwhelming, it cannot be said that the failure to properly charge the jury was harmless error.

The order of the Appellate Division should be reversed and the indictment dismissed as to defendant, with leave to the People, if they be so advised, to resubmit the charge of manslaughter in the first degree to a grand jury (see People v Mayo, 48 NY2d 245 [1979]).

Pigott, J.

The majority acknowledges that “the People presented corroborative evidence,” but asserts that the jury could have discounted Mogavero’s testimony, “determined he was not credible and, found the remaining evidence insufficient to find defendant guilty beyond a reasonable doubt” (majority op at 27). I disagree. Not only did the People independently establish that defendant’s fingerprint and the victim’s blood were on the mop handle — the object that Mogavero claimed defendant struck the victim with — they also established that the victim’s blood was on one of the mop-head fragments that had been scattered around the porch where the victim was found, thereby corroborating Mogavero’s testimony that defendant struck the victim in the head with the mop handle. Police also located a mop fragment in a bush near the porch approximately 8 to 10 feet away from the porch steps, supporting Mogavero’s testimony that defendant was swinging the mop handle like a baseball bat.

Defendant did not deny possessing the mop, telling police in a statement that was read to the jury that he used the handle to “poke” the victim to determine if he was conscious. The jury was, of course, free to reject that explanation, particularly in light of the trial testimony that the mop handle was bent. In addition, the People’s medical examiner testified with a reasonable degree of medical certainty that the “linear patterns” and bruises on the victim’s jawline, chest, shoulder and arm could have been caused by the mop handle.

The compelling forensic evidence that defendant deliberately and brutally attacked the victim with the mop handle evinced defendant’s intent to seriously injure the victim and lent credence to Mogavero’s testimony that, earlier in the night, while he was in Velez’s apartment, defendant participated in a similarly vicious assault on the victim with the same intent. Thus, even absent the requested jury instruction, the evidence presented at trial overwhelmingly established defendant’s guilt and I would therefore affirm the conviction.

Chief Judge Lippman and Judges Graffeo, Read and Smith concur with Judge Rivera; Judge Pigott dissents and votes to affirm in an opinion in which Judge Abdus-Salaam concurs.

Order reversed and the indictment as to defendant dismissed, with leave to the People, if they be so advised, to resubmit the charge of manslaughter in the first degree to a grand jury.

      . Clarke was also indicted for the murder and tried separately.

      . The People’s reference to a lack of benefit appears to be in response to the Criminal Jury Instruction “Accomplice As A Question of Fact,” which states that “[o]ur law is especially concerned about the testimony of an accomplice who implicates another in the commission of a crime, particularly when the accomplice has received, expects, or hopes for a benefit in return for testimony” (CJI2d[NY] Accomplice As A Question of Fact).

      . The People had requested the lesser included offense instruction during the charge conference (see generally Penal Law § 125.20 [1]).

      . See Penal Law §§ 125.20, 125.15, 125.10, 120.00.

      . Moreover, the jury could have accepted as true the defendant’s statement that Clarke warned the defendant and Mogavero to go into hiding, suggesting that the undisputed main assailant with respect to the beating, Clarke, considered Mogavero to be a culpable participant in the murder.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [11 NE3d 709, 988 NYS2d 559]
    In the Matter of John Kapon et al., Appellants, v William I. Koch, Respondent.
    Argued February 19, 2014;
    decided April 3, 2014

      POINTS OF COUNSEL

      Zuckerman Spaeder LLP, New York City (Paul Shechtman and Brian K. Mahanna of counsel), and The Weinstein Law Firm PLLC (Andrew J. Weinstein of counsel), for appellants.
    The courts below erred in not limiting the subpoenas. (Matter of Welch, 183 Misc 2d 890; Matter of Ayliffe & Cos., 166 AD2d 223; Matter of Roberts, 214 App Div 271; Cirale v 80 Pine St. Corp., 35 NY2d 113; Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 80 AD3d 199; Catalano v Moreland, 299 AD2d 881; Tannenbaum v City of New York, 30 AD3d 357; Ledonne v Orsid Realty Corp., 83 AD3d 598; Matter of Sutka v Conners, 73 NY2d 395; Oppenheimer Fund, Inc. v Sanders, 437 US 340.)

      Irell & Manella LLP, Los Angeles, California (Moez M. Kaba, John C. Hueston and Bruce A. Wessel of counsel), and Morvillo Abramowitz Grand Iason & Anello P.C., New York City (Edward M. Spiro and Adam L. Pollock of counsel), for respondent.
    I. The courts below did not err in declining to quash the subpoenas. (Ledonne v Orsid Realty Corp., 83 AD3d 598; Allen v

      Crowell-Collier Publ. Co., 21 NY2d 403; Cirale v 80 Pine St. Corp., 35 NY2d 113; Slabakis v Drizin, 107 AD2d 45; Kenford Co. v County of Erie, 41 AD2d 586; Wiseman v American Motors Sales Corp., 103 AD2d 230; Gersten v New York Hosp., 81 AD2d 632; Kelly v Shafiroff 80 AD2d 601; Matter of Catskill Ctr. for Conservation & Dev. v Voss, 70 AD2d 753; Villano v Conde Nast Publs., 46 AD2d 118.) II. The Supreme Court and Appellate Division did not commit a “clear abuse of discretion” in declining to limit the use of appellants’ depositions. (Dove v Atlantic Capital Corp., 963 F2d 15; Matter of American Express Prop. Cas. Co. v Vinci, 63 AD3d 1055; Garnot v LaDue, 45 AD3d 1080; 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 62 AD3d 486; AGH Distribs. v Silvertone Fasteners, 105 AD2d 648.)
   OPINION OF THE COURT

Pigott, J.

This appeal involves the service of a subpoena by a party seeking discovery from a nonparty pursuant to CPLR 3101 (a) (4), the subpoenaing party’s notice obligation to a nonparty under that statutory provision, and the witness’s burden when moving to quash the subpoena. We conclude that the subpoenaing party must first sufficiently state the “circumstances or reasons” underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), and the witness, in moving to quash, must establish either that the discovery sought is “utterly irrelevant” to the action or that the “futility of the process to uncover anything legitimate is inevitable or obvious.” Should the witness meet this burden, the subpoenaing party must then establish that the discovery sought is “material and necessary” to the prosecution or defense of an action, i.e., that it is relevant.

I.

Petitioner John Kapon is a New York resident and Chief Executive Officer of Acker, Merrall & Condit Company (AMC), a New York corporation with a principal place of business in New York City. AMC is a retailer and auctioneer of fine and rare wines, and is the employer of petitioner Justin Christoph. In 2009, respondent William Koch, a wine collector, commenced a fraud action in California (California action) against Rudy Kurniawan alleging that Kurniawan had sold Koch 149 bottles of counterfeit wine through AMC’s auctions and private sales. Neither AMC nor petitioners are parties to the California action. However, in 2008, Koch had commenced an action against AMC in Supreme Court, New York County (New York action) concerning five bottles of alleged counterfeit wine that Kurniawan had consigned to AMC and that AMC had sold to Koch.

In early 2012, Koch, purportedly seeking disclosure in the California action, served subpoenas on petitioners pursuant to CPLR 3119. That section, known as the “Uniform Interstate Depositions and Discovery Act,” provides a streamlined mechanism for disclosure in New York for use in an action that is pending in another state or territory within the United States (see CPLR 3119 [a] [3]; [b], [c]).

Petitioners commenced this special proceeding to quash the subpoenas pursuant to CPLR 2304. The petition also alternatively sought, among other relief, the imposition of a protective order pursuant to CPLR 3103 staying the deposition until both parties in the California action had been deposed, limiting the scope of the deposition questioning to matters material and necessary to that action, and limiting the use of the deposition transcripts to the California action. Petitioners asserted that the subpoenas were defective because they were served before Koch had taken defendant Kurniawan’s deposition, failed to state with particularity the reasons why disclosure was sought, and constituted an “end-run” around the discovery deadline in the New York action. Koch countered that petitioners possessed information that was relevant to the California action.

Supreme Court denied the motions to quash and for a protective order; it did, however, permit petitioners to object to, and decline to answer, deposition questions to the extent that the answers would divulge AMC’s confidential information and trade secrets (37 Misc 3d 1211[A], 2012 NY Slip Op 51992[U] [2012]). The Appellate Division unanimously affirmed, holding that Supreme Court “providently exercised its discretion in denying petitioners’ motion, since petitioners failed to show that the requested deposition testimony [was] irrelevant to the prosecution of the California action” (105 AD3d 650, 651 [1st Dept 2013] [citations omitted]). It also concluded that petitioners failed to meet their burden of articulating “a sufficient, non-speculative basis for postponing their depositions or imposing restrictions on the scope and use of their deposition testimony” (id.). This Court granted petitioners leave to appeal (21 NY3d 975 [2013]) and we now affirm.

II.

Petitioners contend that CPLR 3101 (a) contains distinctions between disclosure required of parties and nonparties, and claim that on a nonparty’s motion to quash a subpoena, the subpoenaing party has the initial burden of demonstrating a need for the disclosure in order to prepare for trial. We reject both arguments.

CPLR 3101 (a) (4) is one mechanism by which a party may obtain discovery from a nonparty (accord CPLR 3101 [a] [3]). It provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: ... (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required” (emphasis supplied).

Prior to its amendment in 1984, section 3101 (a) (4) required a party seeking disclosure from a nonparty to first obtain a court order based on “adequate special circumstances” (see former CPLR 3101 [a] [4]). The 1984 amendment loosened that requirement by “allow[ing] for the discovery of any person who possesses material and necessary evidence,” and eliminating the requirement that a party seeking disclosure first obtain a court order; the intent underlying the amendment was to address case law that had interpreted former section 3101 (a) (4) as prohibiting parties from seeking discovery from nonparty witness without first securing a court order, an interpretation the legislature deemed “contrary to the purpose of the disclosure statutes” (Sponsor’s Mem at 7, Bill Jacket, L 1984, ch 294). Thus, while the typical mechanism of securing discovery from a nonparty pursuant to CPLR 3101 (a) (4) is the issuance of a subpoena with notice, that is the only meaningful distinction between the mechanisms seeking disclosure from parties and nonparties. Because a nonparty is likely to be less cognizant of the issues in pending litigation than a party, section 3101 (a) (4)’s notice provision mandates that the nonparty is apprised of the “circumstances or reasons” as to why the party seeks or requires the disclosure.

Petitioners, however, claim that section 3101 (a) (4)’s notice requirement establishes that the subpoenaing party has the burden of establishing the “circumstances or reasons” for the discovery on a nonparty’s motion to quash. The “circumstances or reasons” language replaced former CPLR 3101 (a) (4)’s “adequate special circumstances” requirement. It is noteworthy, however, that the appellate departments, even before the 1984 amendment, liberally interpreted the “special circumstances” requirement as favoring disclosure so long as the party seeking it met the low threshold of demonstrating a need for the disclosure in order to prepare for trial (see Villano v Conde Nast Publs., 46 AD2d 118, 120 [1st Dept 1974]; Wiseman v American Motors Sales Corp., 103 AD2d 230, 240 [2d Dept 1984]; Matter of Catskill Ctr. for Conservation & Dev. v Voss, 70 AD2d 753, 753 [3d Dept 1979]; Kenford Co. v County of Erie, 41 AD2d 586, 586 [4th Dept 1973]; see also Siegel, NY Prac § 345 [5th ed 2011] [explaining that courts “generously” read the “special circumstances” requirement to initially include a minimal demonstration that the nonparty was hostile, but gradually loosened that requirement so that a party needed to show only that there was a “need of the nonparty’s deposition in order to prepare for trial”]).

Since the 1984 amendment, however, there has been a split among the departments concerning what “circumstances or reasons” are required before disclosure from a nonparty may be obtained pursuant to section 3101 (a) (4). The First and Fourth Departments have adopted a “material and necessary” standard, i.e., that the requested discovery is relevant to the prosecution or defense of an action (see Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 111 [1st Dept 2006]; Catalano v Moreland, 299 AD2d 881, 882 [4th Dept 2002] [in dicta, applying “material and necessary” standard to CPLR 3101 (a) (4)]; see also Hauzinger v Hauzinger, 43 AD3d 1289, 1290 [4th Dept 2007], affd 10 NY3d 923 [2008]; Schroder v Consolidated Edison Co. of N.Y., 249 AD2d 69, 70 [1st Dept 1998], but see Tannenbaum v City of New York, 30 AD3d 357, 358-359 [1st Dept 2006] [requiring a showing that information could not be obtained from another source]).

The Second and Third Departments, while acknowledging that the “special circumstances” requirement no longer applies, nonetheless require the party seeking discovery to meet the “material and necessary” standard and more. Specifically, in those departments, a motion to quash a subpoena will be granted if “the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty, and properly denied when the party has shown that the evidence cannot be obtained from other sources” (Kooper v Kooper, 74 AD3d 6, 16-17 [2d Dept 2010] [citations omitted]; see American Heritage Realty LLC v Strathmore Ins. Co., 101 AD3d 1522, 1524 [3d Dept 2012]; Cotton v Cotton, 91 AD3d 697, 699 [2d Dept 2012]).

We conclude that the “material and necessary” standard adopted by the First and Fourth Departments is the appropriate one and is in keeping with this state’s policy of liberal discovery. The words “material and necessary” as used in section 3101 must “be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Section 3101 (a) (4) imposes no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source. Thus, so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.

Petitioners, however, contend that the Appellate Division erred in placing the burden on them to demonstrate that the deposition testimony was irrelevant to the California action. CPLR 3119 (e) requires, in relevant part, that “[a]n application to the court for a protective order or to . . . quash ... a subpoena issued under this section must comply with the rules or statutes of this state and be submitted to the court in the county in which discovery is to be conducted.” Consistent with that requirement, petitioners moved to quash the subpoenas and for a protective order. Petitioners claim that section 3101 (a) (4)’s directive that the subpoenaing party give the nonparty “notice stating the circumstances or reasons such disclosure is sought or required” requires the subpoenaing party to meet the initial burden of establishing the need for the deposition in preparing for trial. Thus, according to petitioners, the Appellate Division erred in requiring them to establish that the requested discovery was “irrelevant” to the California action. We disagree.

“An application to quash a subpoena should be granted ‘[o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious’ ... or where the information sought is ‘utterly irrelevant to any proper inquiry’ ” (Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332 [1988], citing Matter of Edge Ho Holding Corp., 256 NY 374, 382 [1931] and Matter of La Belle Creole Intl., S.A. v Attorney-General of State of N.Y., 10 NY2d 192, 196 [1961], quoting Matter of Dairymen’s League Coop. Assn., Inc. v Murtagh, 274 App Div 591, 595 [1948], affd 299 NY 634 [1949]). It is the one moving to vacate the subpoena who has the burden of establishing that the subpoena should be vacated under such circumstances (see Matter of Dairymen’s League Coop. Assn., 274 App Div at 595-596; see also Ledonne v Orsid Realty Corp., 83 AD3d 598, 599 [1st Dept 2011]).

Although the nonparty bears the initial burden of proof on a motion to quash, section 3101 (a) (4)’s notice requirement nonetheless obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, “the circumstances or reasons such disclosure is sought or required.” The subpoenaing party must include that information in the notice in the first instance (see Sponsors Mem, Bill Jacket, L 1984, ch 294), lest it be subject to a challenge for facial insufficiency (see De Stafano v MT Health Clubs, 220 AD2d 331, 331 [1995]). Contrary to petitioners’ contention, however, the subpoenaing party’s notice obligation was never intended by the legislature to shift the burden of proof on a motion to quash from a nonparty to the subpoenaing party, but, rather, was meant to apprise a stranger to the litigation the “circumstances or reasons” why the requested disclosure was sought or required.

The subpoenas here plainly satisfy the notice requirement. They not only included the date, time and location of the depositions, but also affixed copies of the amended complaint in the California action detailing the relationship between AMC and Kurniawan. The notice served the function intended by the legislature: it gave petitioners sufficient information to challenge the subpoenas on a motion to quash. Once Koch met that minimal obligation, it was then petitioners’ burden to establish that they were entitled to prevail on the motion to quash. The Appellate Division applied the correct standard when it held that the trial court did not abuse its discretion in denying petitioners’ motion on the ground that they failed to meet their burden of establishing that their deposition testimonies were irrelevant to the California action.

Finally, petitioners contend that the Appellate Division erred in denying their request to limit the use of their depositions to the California action. The Appellate Division concluded that petitioners’ application was insufficient to establish the imposition of such an order, and there is no basis in the record to disturb that holding.

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

Chief Judge Lippman and Judges Graffeo, Read, Rivera and Abdus-Sadaam concur; Judge Smith taking no part.

Order affirmed, with costs.

      . Petitioners did not challenge the subpoenas duces tecum, and this appeal is limited to the motion to quash as it relates to petitioners’ respective deposition testimonies.

      . The 1984 amendment retained the protections enumerated in CPLR 3103 and 3104 to avoid discovery abuses of nonparty witnesses (see Sponsor’s Mem, Bill Jacket, L 1984, ch 294).

      . This is not to say that a pleading will always provide sufficient notice, or that the only way the subpoenaing party can comply with the “circumstances or reasons” notice requirement is to affix a copy of the pleadings to the subpoena.