author: Read, J.

text:
    [900 NE2d 959, 872 NYS2d 408]
    The People of the State of New York, Respondent, v Isaac Diggins, Appellant.
    Argued November 20, 2008;
    decided December 16, 2008

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Rosemary Herbert, Richard M. Greenberg and Ana Vuk-Pavlovic of counsel), for appellant.
    I. Isaac Diggins is entitled to a new trial where evidence of his three prior gun-related convictions, admitted pursuant to People v Molineux (168 NY 264 [1901]), was irrelevant to his accident defense and greatly bolstered the prosecution’s weak case against him. (People v Resek, 3 NY3d 385; People v Ventimiglia, 52 NY2d 350; People v Henson, 33 NY2d 63; People v Hudy, 73 NY2d 40; People v Clarke, 293 AD2d 405; People v Zarif, 290 AD2d 401; Dunnigan v Keane, 137 F3d 117; People v Lutchmansigh, 306 AD2d 540; People v Guiteau, 267 AD2d 1094; People v Plunkett, 158 AD2d 949.) II. Isaac Dig-gins was illegally sentenced as a mandatory persistent violent felony offender after the sentencing court ascribed the wrong burden to the defense and denied Mr. Diggins his right to a hearing to determine the constitutionality of his prior conviction. (People v Mack, 203 AD2d 131; People v Kilgore, 199 AD2d 1008; People v Case, 173 AD2d 892; People v Allen, 135 AD2d 1034; People v James, 109 AD2d 1095; People v Fraser, 54 AD2d 965; People v Robertson, 287 AD2d 312; People v Myron, 28 AD3d 681; People v Boomer, 187 AD2d 659; People v Aiken, 45 NY2d 394.)

      Robert M. Morgenthau, District Attorney, New York City (Gina Mignola and Eleanor J. Ostrow of counsel), for respondent.
    I. Proof of defendant’s prior gun convictions was properly admitted to refute his claims of accident and mistake. (People v Ventimiglia, 52 NY2d 350; People v Fiore, 34 NY2d 81; People v Blair, 90 NY2d 1003; People v Alvino, 71 NY2d 233; People v Vails, 43 NY2d 364; People v Molineux, 168 NY 264; People v Hudy, 73 NY2d 40; People v Steinberg, 170 AD2d 50, 79 NY2d 673; People v Mateo, 2 NY3d 383; People v Kello, 96 NY2d 740.) II. Contrary to defendant’s unpreserved complaint, the sentencing court properly adjudicated defendant to be a mandatory persistent violent felony offender. (People v Verdel, 22 AD3d 324; People v Harris, 61 NY2d 9; People v Miller, 8 NY3d 937; People v Sailor, 65 NY2d 224; People v Catalanotte, 72 NY2d 641; People v Pierre, 45 AD3d 1056; People v Manohar, 40 AD3d 1123; People v Myron, 28 AD3d 681; People v Cottrell, 299 AD2d 914; People v Lewis, 261 AD2d 908.)
   OPINION OF THE COURT

Read, J.

Defendant Isaac Diggins, a drug dealer, was convicted after a jury trial of attempted second-degree murder (Penal Law §§ 110.00, 125.25 [1]), first-degree assault (Penal Law § 120.10 [1]) and criminal possession of a weapon in the second and third degrees (Penal Law § 265.03 [2]; § 265.02 [4] [now Penal Law § 265.03 [3]) in connection with a shooting incident on May 13, 2005. Defendant confessed to the shooting, but claimed that the revolver discharged accidentally. Supreme Court sentenced him as a persistent violent felony offender to an aggregate term of imprisonment of 25 years to life.

On this appeal, we are asked to consider whether defendant was entitled to an evidentiary hearing on his allegation that one of his predicate felony convictions was secured in violation of his constitutional right to counsel. For the reasons that follow, we conclude that Supreme Court did not abuse its discretion by denying defendant an adjournment to gather further evidence in support of his allegation.

I.

At defendant’s arraignment in August 2005, the People filed with the court, and served on defendant, a “Statement of Two or More Predicate Felony Convictions.” The statement notified defendant of two predicate violent felony convictions: a June 15, 2004 conviction for criminal possession of a weapon in the second degree; and a January 23, 1991 conviction for robbery in the first degree. Trial commenced on November 15, 2005, and the jury convicted defendant on November 22, 2005.

On December 14, 2005—four months after the People filed the persistent violent felony offender statement, and three weeks after the verdict—defendant appeared with counsel for sentencing. Defense counsel informed Supreme Court that defendant had a constitutional challenge to the 2004 conviction, which resulted from a trial in absentia because “[apparently his defense attorney in that case did not participate in the trial, did not cross-examine witnesses, and did not put forth a defense.”

The judge asked defense counsel if he had an affidavit from the lawyer who represented defendant in the 2004 case, or if that lawyer was present. Counsel responded “No” to both queries, and requested an adjournment to “file motions.” The judge responded, “Why should I adjourn it? It’s a surprise to you? Because we discussed it at great length before the trial,” meaning “whether or not [defendant] was a mandatory persistent violent felony offender.”

When counsel reiterated that he was challenging the constitutionality of the conviction based on ineffective assistance, the judge interjected that “[defendant’s obligation is to do more.” Counsel then responded as follows:

“I believe I have placed on the record the fact that [the] defense attorney in that case . . . did not participate in the trial in any meaningful way. I think if you want to explore it further I think we need to ask [the attorney] why that was the case. I believe that is certainly sufficient to raise a presumption. He did not receive effective assistance of counsel, his attorney did not participate in the trial[;j complete lack of participation seemingly would constitute ineffective assistance.”

Supreme Court stated that, under appellate case law, a lawyer’s deliberate choice not to participate in a trial as a protest does not amount to ineffective assistance, and so “the law [was] against [defendant].” The judge further observed that she was “not hearing anything” from counsel “that says that maybe there was a good thing [the attorney in the 2004 case] could have done once the complaining witness”—defendant’s wife—“showed up in that case.” Counsel responded, “I don’t know, if you want to give me time to order the minutes of that trial. I can’t give you any specifics about the trial.”

The judge concluded by observing to defense counsel that he had enjoyed sufficient

“time to prepare a meaningful challenge to this previous felony conviction and right now you just sort of tell me, well, I want more time, I’m entitled to more time, and let me just sort of cast around here. I’m still not hearing any reason to think that there is going to be something developed there, so I’m finding the defendant a mandatory persistent felony offender.”

The court then sentenced defendant, who appealed both his conviction and his sentence.

The Appellate Division affirmed. As for defendant’s sentence, the court concluded that Supreme Court did not err by sentencing him as a persistent violent felony offender “without affording him both an adjournment to obtain the transcript of the prior trial and a hearing to determine whether the conviction was unconstitutional” (People v Diggins, 45 AD3d 266, 267 [1st Dept [2007]). The Appellate Division reasoned that defendant “advanced only conclusory allegations, not warranting a hearing, that his conviction for weapons possession was obtained without the effective assistance of counsel” (id. at 268). Further, he “had ample opportunity to obtain the minutes of the prior proceedings for review by the sentencing court, which was not required to grant him an adjournment under the circumstances” (id.). A Judge of this Court subsequently granted defendant leave to appeal (10 NY3d 810 [2008]), and we now affirm.

II.

A “persistent violent felony offender” includes “a person who stands convicted of a violent felony offense . . . after having previously been subjected to two or more predicate violent felony convictions” (Penal Law § 70.08 [1] [a]). Upon finding that a person is a persistent violent felony offender, “the court must impose an indeterminate sentence of imprisonment, the maximum term of which shall be life imprisonment” and the minimum term of which “must be in accordance with [Penal Law § 70.08 (3)]” (Penal Law § 70.08 [2]).

Criminal Procedure Law § 400.16 (2) states that the procedure for determining whether a person is a persistent violent felony offender is governed by CPL 400.15. This procedure furthers the principle that a “conviction obtained in violation of one’s constitutional rights may not be used to enhance punishment for another offense” (People v Harris, 61 NY2d 9, 16 [1983]; see CPL 400.15 [7] [b] [defendant may “controvert an allegation with respect to” a prior conviction on the ground it was unconstitutionally obtained “at any time during the course of the hearing hereunder”]).

The statute specifies that

“[w]hen information available to the court or to the people prior to sentencing for a violent felony offense indicates that the defendant may have previously been subjected to a predicate violent felony conviction, a statement must be filed by the prosecutor before sentence is imposed setting forth the date and place of each alleged predicate violent felony conviction” (CPL 400.15 [2]).

The statute next provides for a preliminary examination. Specifically, the “defendant must be given a copy of such statement and the court must ask him whether he wishes to controvert any allegation made therein” (CPL 400.15 [3]). A defendant who “wishes to controvert any allegation in the statement . . . must specify the particular allegation or allegations he wishes to controvert” (id,.). Uncontroverted allegations are deemed admitted (see id.).

“Where the uncontroverted allegations in the statement are sufficient to support a finding that the defendant has been subjected to a predicate violent felony conviction the court must enter such finding” and sentence the defendant accordingly (CPL 400.15 [4]). The court is, however, required to hold a hearing “[w]here the defendant controverts an allegation in the statement and the uncontroverted allegations in such statement are not sufficient to support a finding that the defendant has been subjected to a predicate violent felony conviction” (CPL 400.15 [5]). The hearing “must be before the court without jury” (CPL 400.15 [7] [a]). The People bear the burden to prove “that the defendant has been subjected to a predicate violent felony conviction . . . beyond a reasonable doubt by evidence admissible under the rules applicable to a trial of the issue of guilt” (id.), but not the prior conviction’s constitutionality (see Harris, 61 NY2d at 15).

Subdivision (6) of CPL 400.15, entitled “Time for hearing,” states as follows: “In any case where a copy of the statement was not received by the defendant at least two days prior to the preliminary examination, the court must upon request of the defendant grant an adjournment of at least two days before proceeding with the hearing.”

Thus, the statute contemplates that the court will proceed immediately from the preliminary examination to the hearing unless the defendant did not receive the statement at least two days beforehand. If this two-day notice requirement is met, the decision whether to grant an adjournment of the hearing is within the court’s discretion. This is consistent with the general rule that “[t]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 NY2d 270, 283 [1984]).

Here, defendant admits that he received the People’s predicate violent felony conviction statement at his arraignment in August 2005, four months before his December 2005 sentencing. Further, Supreme Court was willing to hold an evidentiary hearing based on defendant’s claim that his counsel did not participate in the 2004 trial, as shown by its inquiry whether defendant had an affidavit from that attorney, or if the attorney was present to testify. Thus, the precise issue on this appeal is whether Supreme Court abused its discretion in denying defendant his request for an adjournment to “file motions,” presumably aimed at gathering evidence to prove that his 2004 felony conviction was unconstitutionally obtained.

The statute clearly puts defense counsel on notice to be prepared to proceed with an evidentiary hearing so long as the predicate violent felony offender statement is received at least two days before the preliminary examination. Of course, it may not always be feasible for counsel to obtain minutes or other documents in time for a hearing that immediately follows a preliminary examination. But counsel in this case did not suggest that he had made any effort to obtain the 2004 minutes. He did not even specifically request the adjournment for the purpose of procuring the minutes; instead, he merely cited their unavailability as the reason why he could not “give [the judge] any specifics about the [2004] trial” in response to her questions and observations. In addition, counsel did not provide the judge with an affidavit from the attorney who represented defendant in the 2004 trial, or secure that attorney’s live testimony. He simply asserted that this attorney completely failed to participate in the 2004 trial; however, defendant was concededly tried in absentia, giving rise to an inference that the attorney’s nonparticipation was a protest strategy that would not support a claim of ineffective assistance (see People v Aiken, 45 NY2d 394, 399 [1978]). In light of these circumstances, Supreme Court was not required, as a matter of law, to grant defendant an adjournment to try to put together a more persuasive case.

Finally, defendant also asserts that his conviction should be reversed because Supreme Court erred by permitting the jury to consider evidence that he had previously been convicted of three gun-related offenses. The evidence of .defendant’s prior gun-related convictions was highly probative of his intent, however, given that he claimed that the shooting was accidental, and at least suggested in a videotaped statement admitted at trial that he was unaccustomed to handling firearms. As the judge also observed, the witnesses to the shooting (the victim and his roommate) were “extremely impeachable”: they both had prior criminal records; the victim was for a long time unwilling to cooperate with the police and the prosecutors because he was scared of defendant. Importantly, Supreme Court limited the potential for prejudice in two ways: by reading into the record a hare-bones stipulation consisting only of the conviction dates, the names of the crimes and, in two cases, the type of gun involved; second, by repeatedly instructing the jurors to consider this evidence only in relation to the issue of accident, not propensity.

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

Chief Judge Kaye and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    [901 NE2d 196, 872 NYS2d 705]
    The People of the State of New York, Respondent, v Donald Mills, Appellant. The People of the State of New York, Respondent, v Jose Then, Appellant.
    Argued November 18, 2008;
    decided December 17, 2008

      POINTS OF COUNSEL

      Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for appellant in the first above-entitled action.
    The lower court erred in finding appellant ineligible for relief under the 2005 Drug Law Reform Act because he was within three years of parole, as that was contrary to the legislative intent, and the time eligibility requirement violated equal protection and due process. (Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; New York State Bankers Assn. v Albright, 38 NY2d 430; People ex rel. Westchester Fire Ins. Co. v Davenport Trustees, 91 NY 574; People ex rel. Onondaga County Sav. Bank v Butler, 147 NY 164; Matter of Russo v Valentine, 294 NY 338; Matter of Meyer, 209 NY 386; Central Hanover Bank & Trust Co. v Commissioner of Internal Revenue, 159 F2d 167; People v Bautista, 26 AD3d 230; Matter of Roballo v Smith, 63 NY2d 485; Riley v County of Broome, 95 NY2d 455.)

      William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell and Victoria M. White of counsel), for respondent in the first above-entitled action.
    Defendant was ineligible for relief under the 2005 Drug Law Reform Act because he was within three years of parole eligibility. (People v Smith, 45 AD3d 1478; People v Parris, 35 AD3d 891; People v Thomas, 35 AD3d 895; People v Bautista, 26 AD3d 230, 7 NY3d 838; People v De Jesus, 54 NY2d 447; Matter of State of New York v King, 36 NY2d 59; People v Gray, 86 NY2d 10; Bingham v New York City Tr. Auth., 99 NY2d 355; People v Baumann & Sons Buses, Inc., 6 NY3d 404; People v Iannelli, 69 NY2d 684.)

      Center for Appellate Litigation, New York City (Claudia S. Trupp and Robert S. Dean of counsel), for appellant in the second above-entitled action.
    Appellant was properly resentenced by the motion court pursuant to section 1 of chapter 643 of the Laws of 2005 (Drug Law Reform Act), because at the time he filed his resentencing motion he was both “in the custody of the department of correctional services” and “more than twelve months from being an eligible inmate” as that term is defined by Correction Law § 851 (2). (People v Utsey, 7 NY3d 398; Matter of Guido v Goord, 1 NY3d 345; People v Bautista, 26 AD3d 230, 7 NY3d 838; People v Paniagua, 45 AD3d 98; People v Villar, 48 AD3d 282; Matter of Tubens v New York City Dept. of Correction, 143 AD2d 589; People v McCloud, 38 AD3d 1056; People v Smith, 45 AD3d 1478; People v Bagby, 11 Misc 3d 882; People v De Jesus, 54 NY2d 447.)

      Robert M. Morgenthau, District Attorney, New York City (Grace Vee and Christopher P. Marinelli of counsel), for respondent in the second above-entitled action.
    Defendant was not eligible for resentencing on his 1999 conviction under the 2005 Drug Law Reform Act. (People v Bautista, 26 AD3d 230, 7 NY3d 838; People v Smith, 45 AD3d 1478; People v Nolasco, 37 AD3d 622, 9 NY3d 848; People v Thomas, 35 AD3d 895; People v McCloud, 38 AD3d 1056, 8 NY3d 947; People v Hernandez, 46 AD3d 1425, 9 NY3d 1034; People v Roman, 12 Misc 3d 1197[A], 2006 NY Slip Op 51607[U]; People v Bagby, 11 Misc 3d 882; People v Hardy, 49 AD3d 779; People v Holder, 8 Misc 3d 784.)
   OPINION OF THE COURT

Read, J.

These appeals call upon us to interpret the Drug Law Reform Act of 2005 (see L 2005, ch 643 [the 2005 DLRA]), which allows certain nonviolent A-II felons sentenced to indeterminate terms under the old Rockefeller Drug Laws to seek resentencing to determinate terms under the provisions of the Rockefeller Drug Law Reform Act of 2004 (see L 2004, ch 738). For the reasons that follow, we conclude that the 2005 DLRA does not apply to defendants Donald Mills and Jose Then. We therefore affirm the orders of the Appellate Division in both cases.

I.

A. Mills

On April 20, 1995, Mills pleaded guilty in County Court to criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]), a class A-II felony, in exchange for the promised sentence of an indeterminate term of three years to life in prison. This sentence was imposed on July 26, 1995, to run concurrently with a 2 to 6 years’ sentence resulting from Mills’ conviction, in a separate proceeding, of criminal possession of a weapon in the third degree (Penal Law § 265.02), a class D felony.

Citing the 2005 DLRA, Mills moved in County Court on October 15, 2005 for resentencing on his 1995 drug conviction. By then, he had been denied parole by the Parole Board four times—in 1998, 2000, 2002, and 2004. The judge initially denied Mills’ motion, but later granted him leave to renew. After he was denied parole in April 2006, Mills again applied for resentencing in May 2006. In a decision and order dated June 22, 2006, County Court granted Mills’ request for relief by resentencing him to an eight-year determinate sentence and a five-year period of postrelease supervision.

The People moved pursuant to CPL 440.40 (1) to set aside Mills’ resentencing in light of the Appellate Division’s decision in People v Bautista (26 AD3d 230 [1st Dept 2006], appeal dismissed 7 NY3d 838 [2006] [dismissing appeal on jurisdictional grounds after leave had been granted]). In a decision and order dated January 16, 2007, County Court granted the People’s motion and vacated Mills’ determinate sentence, ordering him to appear for resentencing to his original sentence (14 Misc 3d 1220[A], 2007 NY Slip Op 50100[U]).

County Court considered Mills’ case to be “factually distinguishable” (2007 NY Slip Op 50100[U] at *3) from Appellate Division precedents holding that the 2005 DLRA did not cover A-II felony drug offenders who were parole-eligible within three years of their resentencing applications (see Bautista, 26 AD3d 230 [2006]; People v Parris, 35 AD3d 891 [2d Dept 2006], lv denied 6 NY3d 851 [2006]; People v Thomas, 35 AD3d 895 [3d Dept 2006]) because—unlike the defendants in those cases— Mills had served his minimum sentence. County Court nonetheless concluded that, by virtue of the language of the 2005 DLRA and Correction Law § 851 (2), “the benefits of [2005 DLRA] relief’ were unavailable to “inmates who [had] been denied parole and [were] within two years of their next scheduled appearance before the Parole Board” because the 2005 DLRA “[did] not apply to inmates who [were] three or fewer years from eligibility for parole or appearance before the Parole Board” (2007 NY Slip Op 50100[U] at *4).

The Appellate Division unanimously affirmed in a memorandum, stating that

“County Court properly vacated the new sentence and reimposed the original sentence because defendant was eligible for parole within three years of the time of his application and thus was not eligible to be resentenced. At the time of his application in May 2006, defendant had been denied parole release and was scheduled to appear before the parole board again in April 2008” (People v Mills, 48 AD3d 1108 [4th Dept 2008] [internal quotation marks and citations omitted]).

A Judge of this Court subsequently granted Mills leave to appeal (10 NY3d 867 [2008]).

B. Then

On June 16, 1999, Then pleaded guilty in Supreme Court to criminal sale of a controlled substance in the second degree (Penal Law § 220.41 [1]), a class A-II felony. On June 30, 1999, Supreme Court sentenced Then to an indeterminate prison term of five years to life; on October 8, 2002, he was released to parole supervision.

In December 2002—barely two months later—Then was again arrested and indicted on drug charges. On July 8, 2003, he pleaded guilty in Supreme Court to criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]), another class A-II felony, in full satisfaction of the indictment; on July 29, 2003, Supreme Court sentenced him as a second felony offender to an indeterminate prison term of six years to life. On August 8, 2003, Then’s parole on the 1999 conviction was revoked based on the July conviction, and a time assessment of five months and 26 days was imposed.

Citing the 2005 DLRA, on December 12, 2005 Then moved in Supreme Court for resentencing on his 1999 conviction; he requested a determinate term of three years. He subsequently also applied for resentencing on his 2003 conviction, this time asking Supreme Court to resentence him to a determinate term of six years.

Then argued that he was entitled to consideration for resentencing on the 1999 and 2003 convictions because he was in the Department of Correctional Services’ (DOCS) custody, had been convicted of two class A-II drug felonies, and was more than three years away from his parole eligibility date. The People did not contest Then’s eligibility for resentencing for the 2003 conviction; however, they argued that he did not qualify for resentencing for the 1999 conviction because he had already been released on parole in 2002 for that conviction.

In a decision and order dated April 10, 2006, Supreme Court ruled in Then’s favor. Supreme Court concluded that while various “lower court decisions . . . have concerned issues similar to that currently before this court” (citations omitted), Then’s case was “[u]ñique” because he was “currently in the custody of the Department of Corrections on two separate A-II felony convictions, albeit, his incarceration on the [1999 conviction was the] result of a parole violation resulting from his second A-II conviction”; and that “the purposes underlying the drug reform act call[ed] for eligibility in [Then’s] case.” On April 24, 2006, Supreme Court resentenced Then to a determinate term of five years’ imprisonment and a five-year period of postrelease supervision for the 1999 conviction, to run concurrently with a determinate term of six years’ imprisonment and a five-year period of postrelease supervision for the 2003 conviction.

The People appealed, and the Appellate Division unanimously reversed and reinstated Then’s original sentence for the 1999 conviction. The court reasoned that Then’s

“release to parole in 2002 precluded resentencing on his 1999 conviction. Under the 2005 DLRA, a defendant applying for resentencing must be more than three years away from parole eligibility. When defendant applied for resentencing in 2005, he did not qualify, because he had already been paroled” (People v Then, 47 AD3d 404, 405 [1st Dept 2008] [citations omitted]).

A Judge of this Court subsequently granted Then leave to appeal (10 NY3d 845 [2008]).

II.

The 2005 DLRA provides that

“any person in the custody of the department of correctional services convicted of a class A-II felony offense defined in article 220 of the penal law which was committed prior to the effective date of this section, and who was sentenced thereon to an indeterminate term of imprisonment with a minimum period not less than three years pursuant to provisions of the law in effect prior to the effective date of this section, and who is more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law, and who meets the eligibility requirements of paragraph (d) of subdivision 1 of section 803 of the correction law . . . [may apply for resentencing to a determinate term]” (L 2005, ch 643, § 1 [emphasis added]).

Correction Law § 851 (2), in turn, defines an “eligible inmate” as

“a person confined in an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within two years. ... In the case of a person serving an indeterminate sentence of imprisonment imposed pursuant to the penal law in effect after September one, nineteen hundred sixty-seven, for the purposes of this article parole eligibility shall be upon the expiration of the minimum period of imprisonment fixed by the court or where the court has not fixed any period, after service of the minimum period fixed by the state board of parole. If an inmate is denied release on parole, such inmate shall not be deemed an eligible inmate until he or she is within two years of his or her next scheduled appearance before the state parole board” (emphasis added).

Reading these two provisions together, we hold that in order to qualify for resentencing under the 2005 DLRA, class A-II felony drug offenders must not be eligible for parole within three years of their resentencing applications (see Bautista, 26 AD3d at 230; People v Parris, 35 AD3d 891, 892 [2d Dept 2006]; People v Thomas, 35 AD3d 895, 896 [3d Dept 2006]; People v Smith, 45 AD3d 1478 [4th Dept 2007]). The statutory text is simply not amenable to any other interpretation. Even if it were ambiguous, legislative history and policy considerations do not support the proposition, advanced by Mills, that the Legislature never intended what he calls a “three-year carve-out.”

For example, interested parties as varied as the Commissioner of the Department of Correctional Services and the Executive Director of the New York State Defenders Association (NYSDA) explicitly described the 2005 DLRA as creating a three-year limitation. The Commissioner remarked that

“[t]o be eligible to apply, an offender must have more than three years remaining until his or her parole eligibility date and must also be otherwise eligible to earn merit time. It is estimated that there are approximately 508 inmates serving indeterminate sentences . . . who would be eligible to ... be re-sentenced” (see Letter of Glen S. Goord, Commissioner of DOCS, Bill Jacket, L 2005, ch 643, at 11).

Indeed, the NYSDA’s Executive Director actually emphasized the fact that the 2005 DLRA would not reach first-time class A-II felony drug offenders, stating in a letter to Governor Pataki that

“[t]he bill is narrowly tailored to offer the possibility of relief to inmates who are most desperately in need of sentence review: those non-violent drug offenders who are serving life sentences for Class A-II drug offenses with relatively long minimum terms who were overlooked in the 2004 Drug Law Reform Act.
“[The bill that became the 2005 DLRA] offers the opportunity for discretionary resentencing only to those A-II felony offenders who are more than three years from parole release consideration. Therefore, [the bill] will not apply to most A-II offenders serving minimum terms of less than 6 years because the majority of them will be within 3 years of parole release consideration on the effective date of this law” (see Letter of Jonathan E. Gradess, Executive Director of the NYSDA, Bill Jacket at 25).

Moreover, while the introducer’s memorandum states that the statute would apply to “[t]hose class A-II felony controlled substance offenders who ... at the time of the petition are . . . more than 12 months from being eligible for the temporary release program established pursuant to section 851 of the correction law” (Senate Introducer’s Mem in Support, Bill Jacket at 3), this does not conflict with the three-year limitation. As the New York City Bar Association made clear in its description of the 2005 DLRA’s eligibility provisions: “The bill would allow non-violent A-II offenders more than twelve months away from temporary release eligibility with three years or longer left to serve the opportunity to petition for resentencing” (Letter of John H. Doyle, III, Chair, Council on Criminal Justice, Association of the Bar of the City of New York, Bill Jacket at 22).

Further, this reading of the statutory text does not create a distinction that is irrational in light of the Legislature’s intent. Defendants decry the fact that the 2005 DLRA does not cover first-time felony drug offenders facing indeterminate three-years-to-life sentences, while second- and third-time offenders might be eligible for resentencing. But this difference in treatment “ameliorat[es] the conditions of those A-II offenders facing the longest prison time” (Bautista, 26 AD3d at 230 [emphasis added]), as the Legislature intended when it enacted the 2005 DLRA. In short, the Legislature chose to confine the opportunity for resentencing in the courts to those A-II felony drug offenders unable to seek early release from prison from the Parole Board in the near term.

III.

Mills was less than three years from parole eligibility when he applied for resentencing: as mentioned earlier, by law, Mills must receive a parole hearing every two years. Thus, in accordance with the plain meaning of the 2005 DLRA (and, by reference, Correction Law § 851 [2]), Mills is not “more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law” and therefore does not qualify for resentencing. As previously noted, the very point of the “eligible inmate” restriction is plausibly to allow the Parole Board (rather than the courts) to decide whether an incarcerated class A-II felony drug offender should be released in those cases where parole review is upcoming. Finally, although Mills also contends that ineligibility for resentencing would violate his rights to due process and equal protection under the State and Federal Constitutions, this argument is unpreserved for our review.

Then’s case is somewhat more complicated because he was sentenced to an indeterminate term upon his conviction in 2003 for a class A-II drug felony that he committed while released on parole from a 1999 conviction for another class A-II drug felony. As a result of the 2003 conviction, he was ineligible for parole for more than three years at the time he applied for resentencing. Then urges us to read the “eligible inmate” language literally, thereby entitling him to seek resentencing under the 2005 DLRA for both the 1999 conviction—which he claims was, in effect, revived for purposes of the 2005 DLRA by the time assessment imposed for the parole violation—and the 2003 conviction.

This would create illogical, if not perverse, results. For example, if Then had not broken the law while on parole, he would clearly be ineligible for resentencing on the 1999 conviction under the 2005 DLRA (he would not have been in DOCS’s custody, for one thing), leaving him with an indeterminate lifetime sentence. Then’s argument boils down to the proposition that, solely because he is a repeat offender, he qualified for relief (possible resentencing to a determinate term for the 1999 conviction) otherwise beyond his reach. Surely the Legislature did not intend fresh crimes to trigger resentencing opportunities.

A valid and more sensible reading of the statutory text is that in order to be eligible for resentencing, an inmate must be more than three years from parole eligibility for the same class A-II drug felony for which resentencing is sought. In Then’s case, he became ineligible for parole on the 1999 conviction the minute he was, in fact, paroled. We therefore hold that once a defendant has been released to parole supervision for a class A-II drug felony conviction, he or she no longer qualifies for 2005 DLRA relief for that particular conviction (see People v Hardy, 49 AD3d 779, 779-780 [2d Dept 2008]; People v McCloud, 38 AD3d 1056, 1057 [3d Dept 2007], lv dismissed 8 NY3d 947 [2007]; People v Hernandez, 46 AD3d 1425, 1426 [4th Dept 2007], lv dismissed 9 NY3d 1034 [2008]).

Accordingly, the orders of the Appellate Division in Mills and Then should be affirmed.

Chief Judge Kaye and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.

In each case: Order affirmed.

      . In those cases where the Parole Board denies parole, the inmate must be informed in writing of the reasons and factors supporting its decision, and the Board must specify a date not more than 24 months later for reconsideration (see Executive Law § 259-i [2] [a]; see also Correction Law § 851 [2], discussed infra).

      . A “time assessment” is “a period of time which is fixed as a result of a final parole revocation hearing and which determines a date by which time the parole violator will be eligible for re-release” (9 NYCRR 8002.6 [a]; see also 9 NYCRR 8005.20 [c] [3] [ii] [providing that for nonviolent felony offenders such as Then, “a hearing officer shall impose a time assessment” upon the sustaining of any charges at a parole revocation hearing]). A time assessment “will be set in months and days” (9 NYCRR 8002.6 [b] [1]) and represents the time that must elapse before an offender can again be released to parole on a sentence for which he would otherwise be parole-eligible immediately (by definition, as the offender had already been not only eligible for parole, but granted parole on that offense). For Then, this meant that he could not be released to parole on any conviction until at least five months and 26 days after the final determination of his revocation hearing (see 9 NYCRR 8002.6 [e]). Of course, he was already going to be imprisoned beyond this time period on his 2003 conviction.

      . Correction Law § 803 governs merit time allowances for inmates.

      . An Assembly memorandum not included in the Bill Jacket uses the language “more than twelve months from being eligible for appearance before the parole board” (Mem in Support of 2005 NY Assembly Bill A8980), but this appears to have been an error corrected by the time the bills were consolidated, passed, and sent to the Governor to be signed into law.

      . Assuming Then qualifies for postrelease “termination of sentence” under Executive Law § 259-j (3-a), part of the 2004 DLRA (see L 2004, ch 738, § 37), this same relief would still be available to him if and when he is once again paroled on his 1999 conviction.


author: Pigott, J.

text:
    [901 NE2d 192, 872 NYS2d 701]
    The People of the State of New York, Appellant, v Jean Yves Jean-Baptiste, Respondent.
    Argued October 21, 2008;
    decided November 25, 2008

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn (Ruth E. Ross and Leonard Joblove of counsel), for appellant.
    The evidence adduced at defendant’s trial was legally sufficient to support his conviction of depraved indifference murder. (Policano v Herbert, 1 NY3d 588; People v Register, 60 NY2d 270, 466 US 953; People v Sanchez, 98 NY2d 373; People v Hafeez, 100 NY2d 253; People v Gonzalez, 1 NY3d 464; People v Payne, 3 NY3d 266; People v Suarez, 6 NY3d 202; People v Feingold, 7 NY3d 288; People v Favor, 82 NY2d 254; People v Mitchell, 80 NY2d 519.)

      Lynn W.L. Fahey, New York City, and Joshua M. Levine for respondent.
    The Appellate Division correctly determined that the evidence was legally insufficient to sustain respondent’s depraved indifference murder conviction. (People v Vasquez, 88 NY2d 561; People v Favor, 82 NY2d 254; People v Pepper, 53 NY2d 213, 454 US 967, 1162; Griffith v Kentucky, 479 US 314; Jones v United States, 526 US 227; In re Winship, 397 US 358; Schriro v Summerlin, 542 US 348; People v Getch, 50 NY2d 456; Sandstrom v Montana, 442 US 510; People v Hill, 85 NY2d 256.)
   OPINION OF THE COURT

Pigott, J.

The issue raised by this appeal is whether the evidence introduced at trial was legally sufficient to establish defendant’s guilt of depraved indifference murder. Because the Appellate Division properly applied the present standard for depraved indifference murder, as set forth in People v Feingold (7 NY3d 288 [2006]), we conclude that it was not and affirm the Appellate Division’s reduction of defendant’s conviction to manslaughter in the second degree (Penal Law § 125.15 [1]).

On January 13, 2002, just after midnight, Michael Weekes, his fiancée and several other friends arrived at a party in a basement of a Brooklyn home. After approximately 20 minutes, Weekes and his fiancée walked past a man nicknamed “Back-shot,” whom they recognized from previous parties. Backshot either said something to Weekes, pushed him, or both. In response, Weekes turned, picked up a bottle from a table and hit Backshot once on the side of the head. Defendant, Backshot’s cousin, then pulled out a handgun and, when he was within 12 to 18 inches of Weekes, pulled the trigger twice, but the gun did not fire. Defendant pulled the trigger a third time, discharging a round into Weekes’s chest, killing him.

For these acts, defendant was charged with, among other things, two counts of murder in the second degree (Penal Law § 125.25 [1] [intentional murder], [2] [depraved indifference murder]). After a trial, a jury acquitted defendant of intentional murder, but was unable to reach a verdict on the remaining charges, including the charge of depraved indifference murder. The People thereafter filed a superseding indictment, adding manslaughter in the first degree (Penal Law § 125.20 [1]) to the charges contained in the prior indictment.

At the time of defendant’s second trial, the elements of depraved indifference murder were defined by this Court’s decision in People v Register (60 NY2d 270 [1983]). Under that definition, the only culpable mental state that the People were required to prove was recklessness with respect to the risk of death. The requirement that the defendant’s acts be committed “[u]nder circumstances evincing a depraved indifference to human life” under Register did not refer to defendant’s mental state, but instead referred to “the factual setting in which the risk creating conduct must occur” (id. at 276). Based on that instruction from the court, the jury found defendant guilty of depraved indifference murder.

Defendant appealed, contending that the evidence was legally insufficient to support his conviction. He argued that because the standard by which depraved indifference murder is measured had changed between the time of his conviction and the time of his appeal, from the objective standard as charged to the jury to a subjective standard as articulated by this Court in People v Feingold (7 NY3d 288 [2006]), he was entitled to a dismissal of that charge. In Feingold, this Court overruled Register and held that “depraved indifference to human life is a culpable mental state” (id. at 294). Thus, under Feingold, it is not the circumstances under which the homicide occurred that determines whether defendant is guilty of depraved indifference murder, but rather defendant’s mental state at the time the crime occurred. The Appellate Division, citing Feingold, agreed with the defendant and held that his conviction of depraved indifference murder could not stand because the evidence failed to establish the mental state required for depraved indifference to human life (44 AD3d 792 [2007]). It further concluded, however, that the evidence was legally sufficient to establish the lesser-included offense of manslaughter in the second degree (Penal Law § 125.15 [1]), and modified the judgment accordingly (44 AD3d at 793). A Judge of this Court granted leave to appeal (9 NY3d 1035 [2008]).

The primary issue before us is whether our decision in Feingold applies only prospectively to those defendants sentenced after that decision was rendered or whether that decision should apply to cases, such as the one now before us, which are pending on direct appeal. We hold that the standard as articulated in Feingold should apply to cases brought on direct appeal in which the defendant has adequately challenged the sufficiency of the proof as to his depraved indifference murder conviction.

“Under traditional common-law principles, cases on direct appeal are generally decided in accordance with the law as it exists at the time the appellate decision is made” (People v Vasquez, 88 NY2d 561, 573 [1996]). For instance, in People v Hill (85 NY2d 256 [1995]), we held that our decision in People v Ryan (82 NY2d 497 [1993])—concluding the term “knowingly” in Penal Law § 220.18 applies not only to the possession of the illicit substance itself but also to the weight of the substance— was applicable to cases pending on direct appeal at the time of the decision. We reasoned that “a conclusion that the Ryan case is not retroactive would result in a person’s guilt even though one of the elements of the crime had not been established” (85 NY2d at 263). As such, a finding of guilt would “have rendered the proceeding fundamentally unfair and a violation of due process” (id. at 262).

Our reasoning in Hill is applicable to this case. Notably, a majority of the Appellate Division decisions already considering the issue have applied the prevailing law to direct appeals of depraved indifference murder convictions (see e.g. People v Dickerson, 42 AD3d 228 [1st Dept 2007], lv denied 9 NY3d 960 [2007]; People v Ziminski, 34 AD3d 507 [2d Dept 2006]; People v George, 43 AD3d 560 [3d Dept 2007], affd 11 NY3d 848 [2008] [decided today]; People v Garrison, 39 AD3d 1138 [4th Dept 2007], lv denied 9 NY3d 844 [2007]).

The People rely on our decision in Policano v Herbert (7 NY3d 588 [2006]) in urging that this Court should not apply the existing depraved indifference murder law to defendants challenging their convictions on direct appeals. In Policano, we applied the three-part Pepper test when deciding whether our new depraved indifference standard applied retroactively to a case brought by collateral attack (id. at 603-604; see People v Pepper, 53 NY2d 213 [1981]). We held that the existing law should not be applied on collateral review to defendants whose convictions became final prior to our new interpretation of the law of depraved indifference murder. But that is not the case here, where defendant’s conviction is still not final.

There are important distinctions between defendants continuing to press specific sufficiency challenges during the appellate process, and those raising such challenges long after their convictions are final. Courts are not generous in applying new rules of law to collateral proceedings, given the “underlying considerations of finality” (see People v Favor, 82 NY2d 254, 261 n 2 [1993]). This Court has “drawn a sharp distinction between cases on direct appeal and cases in which ‘[t]he normal appellate process [has come] to an end’ ” (id.). In Policano, we recognized that to allow retroactive application of existing law to final convictions “would mean that eveiy defendant to whose case it was relevant, no matter how remote in time and merit, would become [a] beneficiary” (Pepper, 53 NY2d at 222; see Policano, 7 NY3d at 604). We specifically noted our concern for congesting the courts with a multitude of motions by defendants with long-standing final convictions (Policano, 7 NY3d at 604). That concern is not present here. To exempt those cases that are presently on direct appeal from the application of this Court’s recent jurisprudence would produce results contrary to our common-law tradition. Consequently, the Appellate Division here properly evaluated defendant’s sufficiency challenge in light of our recent decisional law on depraved indifference murder.

The People maintain that, even if this Court retroactively applied Feingold to cases on direct appeal, the legal sufficiency of defendant’s conviction should be measured by the court’s charge given without exception. Here, however, the defendant made a specific motion to dismiss for legal insufficiency at trial, anticipating the change in the law brought by Feingold. The principle the People cite is inapplicable when, as in this case, defense counsel made a specific motion for a trial order of dismissal. Having made that motion, defense counsel did not additionally have to take an exception to the court’s depraved indifference murder charge (see Suria v Shiffman, 67 NY2d 87, 96 [1986]).

Our holdings in People v Dekle (56 NY2d 835 [1982]) and People v Sala (95 NY2d 254, 260 [2000]) are not to the contrary. In Dekle, defendant moved for a trial order of dismissal on a robbery count because no “immediate” threat of physical force was possible when defendant was unable to open the folded knife. The court denied his motion and charged the jury that “immediate” had its ordinary meaning and no specific time was required to convict; defendant did not object to that definition. On appeal, defendant advanced a new theory, claiming that the trial court should have charged that “immediate” requires temporal and geographic proximity to the taking of the property. Unlike the present case, defendant in Dekle failed to preserve his newly advanced legal theory because it differed from the theory he advanced at trial. In Sala as well, the defendants advanced a different legal theory in this Court than the one objected to at trial.

In applying the Feingold standard to the case at bar, we conclude that the Appellate Division properly found that the evidence failed to establish that defendant acted with the requisite mental state of depraved indifference to human life. Further, the court correctly concluded that the evidence supported a conviction for manslaughter in the second degree (Penal Law § 125.15 [1]).

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

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Jones concur.

Order affirmed.

       Similarly, in People v Reynolds (25 NY2d 489 [1969]), this Court held that an evidentiary rule, pronounced after defendant’s conviction, would not be retroactively applied to defendant’s case. Reynolds’ appeal, however, was on a motion to reargue to this Court four years after his appeal had become final.


author: Smith, J. Pigott, J.

text:
    [900 NE2d 966, 872 NYS2d 415]
    Frank Adamo, as Executor of Norma Rose, Deceased, et al., Appellants, v Brown & Williamson Tobacco Corporation, as Successor in Interest to The American Tobacco Company, et al., Respondents, et al., Defendant.
    Argued November 18, 2008;
    decided December 16, 2008

      POINTS OF COUNSEL

      Whiteman Osterman & Hanna LLP, Albany (Howard A. Levine, Alan J. Goldberg, Christopher W. Meyer, William S. Nolan and Christopher M. McDonald of counsel), and Finz & Finz, P.C., Jericho (Stuart L. Finz, Jay L. Feigenbaum and Todd M. Rubin of counsel), for appellants.
    I. The Appellate Division majority erred in imposing a new, impossible-to-meet “consumer acceptability” burden on plaintiffs, a radical and unprecedented step that effectively immunizes the entire cigarette industry from defective design claims. (Voss v Black & Decker Mfg. Co., 59 NY2d 102; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Gonzalez v Delta Intl. Mach. Corp., 307 AD2d 1020; Smith v Hub Mfg. Inc., 634 F Supp 1505; Cohen v Hallmark Cards, 45 NY2d 493; Denny v Ford Motor Co., 87 NY2d 248; Rypkema v Time Mfg. Co., 263 F Supp 2d 687; Friedman v National Presto Indus., Inc., 566 F Supp 762; Rainbow v Elia Bldg. Co., 79 AD2d 287, 54 NY2d 718; Felix v Akzo Nobel Coatings, 262 AD2d 447.) II. Plaintiffs established a prima facie case of causation. (Voss v Black & Decker Mfg. Co., 59 NY2d 102; Gayle v City of New York, 92 NY2d 936; Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743; Mirand v City of New York, 84 NY2d 44; O’Neill v City of Port Jervis, 253 NY 423; Nowlin v City of New York, 81 NY2d 81; Mercado v Vega, 77 NY2d 918; Equitable Life Assur. Socy. of U.S. v Nico Constr. Co., 245 AD2d 194; Mortensen v Memorial Hosp., 105 AD2d 151; McKinnon v Bell Sec., 268 AD2d 220.) III. Plaintiffs’ negligent design claim is not preempted by federal law. (FDA v Brown & Williamson Tobacco Corp., 529 US 120; Geier v American Honda Motor Co., 529 US 861; Medtronic, Inc. v Lohr, 518 US 470; Retail Clerks v Schermerhorn, 375 US 96; Cipollone v Liggett Group, Inc., 505 US 504; Rice v Santa Fe Elevator Corp., 331 US 218; English v

      General Elec. Co., 496 US 72; Puerto Rico Dept. of Consumer Affairs v ISLA Petroleum Corp., 485 US 495; Solid Waste Agency of Northern Cook Cty. v Army Corps of Engineers, 531 US 159; Central Bank of Denver, N. A. v First Interstate Bank of Denver, N. A., 511 US 164.) IV. The jury’s punitive damages award should stand. (Nardelli v Stamberg, 44 NY2d 500; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196; Ross v Louise Wise Servs., Inc., 8 NY3d 478; United States v Philip Morris USA, Inc., 449 F Supp 2d 1; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196; Lugo v LJN Toys, 146 AD2d 168; Dubecky v S2 Yachts, 234 AD2d 501; Krohn v Agway Petroleum Corp., 168 AD2d 858; Croton Falls Fire Dist. v Pierce Mfg. Co., 130 AD2d 456; Hafner v Guerlain, Inc., 34 AD2d 162.)

      Mayer Brown LLP, New York City (Andrew H. Schapiro, Andrew L. Frey, Lauren R. Goldman and Scott A. Chesin of counsel), Joseph W. Bellacosa, Garden City, Arnold & Porter LLP, New York City (Keri L. Arnold and Angela Showalter of counsel), Winston & Strawn LLP (Thomas J. Quigley and Luke A. Connelly of counsel), Chadbourne & Parke LLP (Thomas E. Riley, Ellen Black and Cassandre L. Charles of counsel) and Arnold & Porter LLP, Washington, D.C. (James M. Rosenthal of counsel), for respondents.
    I. The Appellate Division correctly dismissed appellants’ negligent design claim because there was no evidence of a safer design that would have utility similar to that of regular cigarettes. (Voss v Black & Decker Mfg. Co., 59 NY2d 102; Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471; Denny v Ford Motor Co., 87 NY2d 248; Scarangella v Thomas Built Buses, 93 NY2d 655; Felix v Akzo Nobel Coatings, 262 AD2d 447; Perez v Radar Realty, 34 AD3d 305; Pigliavento v Tyler Equip. Corp., 248 AD 2d 840; Clinton v Brown & Williamson Holdings, Inc., 498 F Supp 2d 639; Rypkema v Time Mfg. Co., 263 F Supp 2d 687; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376.) II. Appellants’ failure to prove proximate cause provides an independent basis for affirmance. (Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; Meiselman v Crown Hgts. Hosp., 285 NY 389; Cipollone v Liggett Group, Inc., 683 F Supp 1487.) III. Prejudicial instructional and evidentiary errors would require a retrial if this Court were to reverse the dismissal. (Denny v Ford Motor Co., 87 NY2d 248; Voss v Black & Decker Mfg. Co., 59 NY2d 102; Scarangella v Thomas Built Buses, 93 NY2d 655; J.R. Loftus, Inc. v White, 85 NY2d 874.) IV. Appellants’ negligence claim, as it was sent to the jury, is preempted by federal law. (Geier v American Honda Motor Co., 529 US 861; Freightliner Corp. v Myrick, 514 US 280; FDA v Brown & Williamson Tobacco Corp., 529 US 120; Conley v R.J. Reynolds Tobacco Co., 286 F Supp 2d 1097; Johnson v Brown & Williamson Tobacco Corp., 345 F Supp 2d 16; Insolia v Philip Morris Inc., 128 F Supp 2d 1220; Alvarez v R.J. Reynolds Tobacco Co., 313 F Supp 2d 61; Spain v Brown & Williamson Tobacco Corp., 363 F3d 1183; Puerto Rico Dept. of Consumer Affairs v ISLA Petroleum Corp., 485 US 495; Bob Jones Univ. v United States, 461 US 574.) V. The punitive damages award cannot stand. (Sharapata v Town of Islip, 56 NY2d 332; McDougald v Garber, 73 NY2d 246; Lugo v LJN Toys, 146 AD2d 168; Dubecky v S2 Yachts, 234 AD2d 501; Krohn v Agway Petroleum Corp., 168 AD2d 858; Croton Falls Fire Dist. v Pierce Mfg. Co., 130 AD2d 456; West v Goodyear Tire & Rubber Co., 973 F Supp 385; Camillo v Geer, 185 AD2d 192; Hafner v Guerlain, Inc., 34 AD2d 162; Home Ins: Co. v American Home Prods. Corp., 75 NY2d 196.)

      Goldberg Segalla LLP, Buffalo (Neil A. Goldberg, Matthew S. Lerner and Bryan D. Richmond of counsel), and Hugh F. Young, Jr., Reston, Virginia, for Product Liability Advisory Council, Inc., amicus curiae.
    I. This Court should affirm the Appellate Division’s decision and order because it relies upon well-settled principles stated in Voss v Black & Decker Mfg. Co. (59 NY2d 102 [1983]) and the departure from these principles will have a dire statewide and national impact on future litigation concerning liability for product design defects. (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471; Clinton v Brown & Williamson Holdings, Inc., 498 F Supp 2d 639; Friedman v National Presto Indus., Inc., 566 F Supp 762; Denny v Ford Motor Co., 87 NY2d 248; Felix v Akzo Nobel Coatings, 262 AD2d 447; Perez v Radar Realty, 34 AD3d 305; Pigliavento v Tyler Equip. Corp., 248 AD2d 840; Scarangella v Thomas Built Buses, 93 NY2d 655; Codling v Paglia, 32 NY2d 330.) II. Appellants’ argument requires this Court to go beyond its defined role in this state’s tripartite system and imposes a paternalistic view of products liability not considered in New York jurisprudence. (MacPherson v Buick Motor Co., 217 NY 382; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14; Matter of 89 Christopher v Joy, 35 NY2d 213; FDA v Brown & Williamson Tobacco Corp., 529 US 120; Klostermann v Cuomo, 61 NY2d 525; Codling v Paglia, 32 NY2d 330; Pommells v Perez, 4 NY3d 566; Matter of Jensen v Southern Pac. Co., 215 NY 514; Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333.)

      James A. Henderson, Jr., Ithaca, for Professor James A. Henderson, Jr., amicus curiae.
    I. New York products liability law, as well as American products law generally, weighs heavily the interests of consumers in being allowed to choose products they deem useful and enjoyable. (Voss v Black & Decker Mfg. Co., 59 NY2d 102; Codling v Paglia, 32 NY2d 330; Scarangella v Thomas Built Buses, 93 NY2d 655.) II. Ignoring the fact that consumers of regular cigarettes would not choose to smoke, plaintiffs’ proposed alternative cannot be justified on the ground that cigarettes represent a special category of products that deserve to be banned from further sale or consumption. (McCarthy v Olin Corp., 119 F3d 148; Estate of White v R.J. Reynolds Tobacco Co., 109 F Supp 2d 424; Kotler v American Tobacco Co., 926 F2d 1217; Gunsalus v Celotex Corp., 674 F Supp 1149.)

      Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, D.C. (Rachel Li Wai Suen of counsel), and National Chamber Litigation Center, Inc. (Robin S. Conrad of counsel), for Chamber of Commerce of the United States of America, amicus curiae.
    I. Plaintiffs cannot prevail on a “reasonable alternative design” theory without evidence comparing the utility of regular and ultralight cigarettes. (Dreisonstok v Volkswagenwerk, A.G., 489 F2d 1066; Monahan v Toro Co., 856 F Supp 955; Dyson v General Motors Corp., 298 F Supp 1064; Denny v Ford Motor Co., 87 NY2d 248; United States v Carroll Towing Co., 159 F2d 169; Lavespere v Niagara Mach. & Tool Works, Inc., 910 F2d 167.) II. Plaintiffs offer no reason why their case should be treated differently from any other “reasonable alternative design” case. (Linegar v Armour of Am., Inc., 909 F2d 1150; Singleton v International Harvester Co., 685 F2d 112.)
   OPINION OF THE COURT

Smith, J.

Plaintiffs claim that two cigarette companies were negligent in designing their product, in that they should have used lower levels of tar and nicotine. We agree with the Appellate Division that plaintiffs failed to prove an essential element of their case: that regular cigarettes and “light” cigarettes have the same “utility.” The only “utility” of a cigarette is to gratify smokers’ desires for a certain experience, and plaintiffs did not prove, or try to prove, that light cigarettes perform this function as well as regular cigarettes.

Norma Rose, who died during the pendency of this appeal, smoked for more than 40 years, consuming more than a pack a day of regular cigarettes. Beginning in the late 1960s, the products she smoked were manufactured by the American Tobacco Company and Philip Morris USA Inc. Ms. Rose quit smoking in 1993, and was diagnosed two years later with lung cancer and another condition allegedly caused by smoking. She and her husband brought a number of claims against American Tobacco’s successor (Brown & Williamson Tobacco Corporation), Philip Morris and a third company. All their claims except one for negligent product design were dismissed at the trial level and are not now before us.

A jury found that American Tobacco and Philip Morris negligently designed the cigarettes Ms. Rose smoked and, in later phases of the trial, awarded compensatory and punitive damages. The Appellate Division reversed the resulting judgment, with two Justices dissenting, and granted judgment in defendants’ favor (53 AD3d 80 [2008]). Plaintiffs appeal to us pursuant to CPLR 5601 (a), and we now affirm the Appellate Division’s order.

In Voss v Black & Decker Mfg. Co. (59 NY2d 102, 108 [1983]), speaking of a claim of strict product liability, we said: “The plaintiff... is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner.” While this is a negligence, not a strict liability, case, similar requirements apply—specifically, plaintiffs here had to prove that “it was feasible to design the product in a safer manner.” This means, to use again the language of Vbss, the plaintiffs must show “the potential for designing . . . the product so that it is safer but remains functional” (id. at 109).

Here, plaintiffs presented evidence from which a jury could find that light cigarettes—cigarettes containing significantly lower levels of tar and nicotine—are “safer” than regular cigarettes, but they did not show that cigarettes from which much of the tar and nicotine has been removed remain “functional.” The function of a cigarette is to give pleasure to a smoker; plaintiffs have identified no other function. Plaintiffs made no attempt to prove that smokers find light cigarettes as satisfying as regular cigarettes—indeed, it is virtually uncontested that they do not. Both regular and light cigarettes are available on the market, and the enhanced dangers that come from smoking regular cigarettes are well known, but large numbers of consumers continue to prefer regular cigarettes.

It is not necessary in every product liability case that the plaintiff show the safer product is as acceptable to consumers as the one the defendant sold; but such a showing is necessary where, as here, satisfying the consumer is the only function the product has. A cigarette is a different kind of product from the circular saw in Voss, whose function was to cut wood, or the molding machine in Robinson v Reed-Prentice Div. of Package Mach. Co. (49 NY2d 471 [1980]), whose function was to melt and form plastic.

We find an apt analogy, as the Appellate Division did, in Felix v Akzo Nobel Coatings (262 AD2d 447 [2d Dept 1999]). The product involved in Felix was a quick drying lacquer sealer made from a highly flammable solvent base. The plaintiff argued that a safer design was “feasible,” because a sealer can be made from a water base, but the plaintiffs expert “admitted that the water-based products take hours longer to dry” (id. at 448). The court in Felix found that this “functional difference” defeated the plaintiffs case; the plaintiff failed to produce evidence “that there was an alternative, safer design” serving the same function (id. at 448, 449). Similarly, here plaintiffs’ case fails because plaintiffs failed to show that light cigarettes are equivalent in function, or utility, to regular ones.

Of course we are conscious, as everyone must be, of the irony in speaking of cigarettes’ “utility.” A strong argument can be made that, when the pleasure they give smokers is balanced against the harm they do, regular cigarettes are worse than useless. But it is still lawful for people to buy and smoke regular cigarettes, and for cigarette companies to sell them. To hold, as plaintiffs ask, that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product. If regular cigarettes are to be banned, that should be done by legislative bodies, not by courts.

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

Pigott, J.

(dissenting). I respectfully dissent. Plaintiffs met their burden of establishing that defendants were able to design a safer cigarette that maintained the functionality of a regular cigarette (see Voss v Black & Decker Mfg. Co., 59 NY2d 102, 109 [1983]). The majority concludes, however, that plaintiffs were required “to prove that smokers find light cigarettes as satisfying as regular cigarettes,” and were further obligated to prove that cigarettes serve some function other than to provide pleasure (majority op at 550). In my view, this language improperly shifts the burden of proving consumer acceptability to plaintiffs.

At trial, defendants moved “to offer evidence tending to prove that the ‘safer alternative design’ suggested by plaintiffs was not feasible because it was not acceptable to consumers (i.e., not commercially viable)” (10 Misc 3d 680, 696-697 [2005]). The trial court denied that motion, concluding that evidence of commercial viability of the lighter cigarette was irrelevant to its feasibility or functionality (id. at 699). That was error and, therefore, I would remit the matter to Supreme Court for a new trial to permit defendants the opportunity to present proof of the alleged commercial unacceptability of the lighter cigarette as compared to the regular cigarette.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read and Jones concur with Judge Smith; Judge Pigott dissents in a separate opinion.

Order affirmed, with costs.


text:
    [900 NE2d 964, 872 NYS2d 413]
    The People of the State of New York, Respondent, v Robert Buss, Appellant.
    Argued November 19, 2008;
    decided December 16, 2008

      POINTS OF COUNSEL

      Legal Aid Society of Nassau County, Hempstead (Jeremy L. Goldberg and Kent V. Moston of counsel), for appellant.
    I. The Board of Examiners of Sex Offenders had no authority to deem appellant subject to Sex Offender Registration Act (SORA) assessment, as the sentence for the only crime being used to apply that statute to him would have expired many years before SO-RA’s enactment, and it was consecutive to his subsequent sentence. (People v Ramirez, 89 NY2d 444; People v Windham, 37 AD3d 571, 10 NY3d 801; People ex rel. Maurer v Jackson, 2 NY2d 259.) II. The substance of appellant’s plea allocution in 1983 establishes that he never in fact committed the crime which subsequently rendered him liable to Sex Offender Registration Act (SORA) classification, and so he should not have been made subject to SORA at all, or in the alternative should have been designated as no more than a level one offender. (People v Windham, 10 NY3d 801; Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745; Kennedy v Mendoza-Martinez, 372 US 144; Doe v Pataki, 120 F3d 1263; People v David W., 95 NY2d 130; People v Lopez, 71 NY2d 662; People v Thomas, 159 AD2d 529; People v Kulzer, 199 AD2d 783; People v Zeth, 148 AD2d 960; People v Johns, 201 AD2d 337, 83 NY2d 854.) III. The Appellate Division erred in affirming County Court’s denial of any relief to appellant in connection with the 1987 presentence report. IV. In light of Sex Offender Registration Act’s (SORA) strictly prophylactic purpose, as a matter of law appellant should not have been made subject to SORA’s most onerous terms when all forward-looking evidence presented at his SORA hearing demonstrated that he posed no reasonable risk of reoffending. V. Inasmuch as the Sex Offender Registration Act Risk Assessment Guidelines neither have the force of law nor are narrowly tailored to the statute’s ostensible purpose, the Appellate Division below abdicated its judicial responsibilities in relying on nothing more than those guidelines in affirming the level three risk assessment given to appellant. (Doe v Pataki, 940 F Supp 603, 120 F3d 1263; People v Windham, 10 NY3d 801; People v Ford, 86 NY2d 397; People v Hands, 37 AD3d 441; Doe v Pataki, 3 F Supp 2d 456; People v Kennedy, 7 NY3d 87.)

      Kathleen M. Rice, District Attorney, Mineola (Margaret E. Mainusch, Peter A. Weinstein and Tammy J. Smiley of counsel), for respondent.
    I. Because defendant’s sentence for sexual abuse was aggregated with his later sentence for another crime, and he was, therefore, still serving his sentence for a sex offense when the Sex Offender Registration Act took effect, he is properly subject to the law’s registration requirements. (Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; People v Windham, 37 AD3d 571, 10 NY3d 801; Doe v Pataki, 120 F3d 1263; People v Torres, 51 AD3d 531; People v Curley, 285 AD2d 274; People v Nieves, 172 Misc 2d 346; People v Roberson, 172 Misc 2d 486; People v Merejildo, 45 AD3d 429; People v Cintron, 46 AD3d 353, 10 NY3d 804; People v Ramirez, 89 NY2d 444.) II. Defendant’s allegation that the Sex Offender Registration Act (SORA) should not apply to him because he was not guilty of sexual abuse was not reviewable in the SORA proceeding. (Matter of Josey v Goord, 9 NY3d 386; Matter of Hunter, 4 NY3d 260; O’Brien v City of Syracuse, 54 NY2d 353; People v Taylor, 65 NY2d 1; People v Thomas, 53 NY2d 338; People v Seeber, 4 NY3d 780.) III. Defendant’s self-serving statements at his 1983 plea allocution provide no basis for overturning the Sex Offender Registration Act court’s adjudication of him as a level three offender. (People v Vasquez, 49 AD3d 1282; People v Miller, 48 AD3d 774; People v Brown, 45 AD3d 1123; People v Agard, 35 AD3d 568; Ashe v Swenson, 397 US 436; Buechel v Bain, 97 NY2d 295; Doe v Pataki, 3 F Supp 2d 456; People v Hetrick, 80 NY2d 344; People v Thornton, 34 AD3d 1026; People v Jordan, 31 AD3d 1196.) IV. Defendant is not entitled to an order redacting the victim’s version of the crime from the 1987 presentence report. (People v Wosu, 256 AD2d 1247; People v Wright, 206 AD2d 337; People v Perry, 36 NY2d 114; People v Thomas, 2 AD3d 982; United States v Tucker, 404 US 443; Hili v Sciarrotta, 140 F3d 210; People v Farrar, 52 NY2d 302.) V. Defendant’s challenges to the Sex Offender Registration Act Guidelines in general and to their application to him in particular are without merit. (People v Windham, 10 NY3d 801; People v Brown, 302 AD2d 919; Hernandez v Robles, 7 NY3d 338; Hope v Perales, 83 NY2d 563; People v Castleberry, 43 AD3d 1369.)
   OPINION OF THE COURT

Pigott, J.

Following a March 1983 incident in which he violently assaulted a neighbor, Robert Buss pleaded guilty to one count of sexual abuse in the first degree and one count of assault in the second degree, in satisfaction of all charges. He was sentenced to 2 to 6 years’ imprisonment on each count, to run concurrently. In February 1987, while on parole supervision, Buss attacked and stabbed an acquaintance in her home. He pleaded guilty to attempted murder in the second degree, in full satisfaction of an indictment that included first-degree rape and first-degree sodomy counts. He was sentenced, as a second violent felony offender, to 10 to 20 years’ imprisonment.

When Buss was released in 2002, the Board of Examiners of Sex Offenders (the Board) determined that he was required to register under the Sex Offender Registration Act (SORA), citing his 1983 sexual abuse conviction. The Board calculated a total risk assessment score of 80 points, on the basis of the 1983 incident, making Buss presumptively a level two (moderate risk) offender (see Correction Law § 168-Z [6]). The Board however recommended an upward departure to level three (high risk), because of “the brutal sexual and physical assault” Buss committed in 1987. Buss filed an objection to the Board’s recommended SORA assessment level, arguing, among other things, that SORA does not apply to him because his sentence for the sexual abuse conviction “was due to expire” before SORA became effective in 1996.

County Court rejected that argument and designated Buss a level three sex offender. The court agreed with the Board’s level three recommendation, based on two overrides, “offender inflicted serious physical injury or caused death” and “offender has made a recent threat that he will reoffend by committing a sexual or violent crime.” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Overrides 2, 3 [Nov. 1997].)

The Appellate Division affirmed County Court’s level three designation (44 AD3d 634 [2007]). Noting the serious physical injury Buss had inflicted on his first victim, the Appellate Division concluded that County Court had properly determined that Buss was a presumptive level three sex offender by application of the serious injury override. Without discussion, the Appellate Division rejected as meritless Buss’s claim that SORA did not apply to him in the first instance. We granted leave (10 NY3d 757 [2008]) and now affirm.

Buss argues in this Court that he is not subject to SORA because his 1983 sentence was “due to expire” or “scheduled to expire” before SORA became effective. He does not dispute that his 1987 sentence ran consecutively to the undischarged part of his 1983 sentence (see Penal Law § 70.25 [2-a]). He contends that because the undischarged portion of the sentence he received in 1983 was completed in 1989, he was no longer serving a sentence for a sex crime.

The People do not argue that Buss would be subject to SORA even if he were no longer serving a sentence for his sexual abuse conviction when SORA became effective. Instead, they rely on Penal Law provisions which, they argue, show that Buss was still serving a sex offense sentence when SORA took effect. The People cite Penal Law § 70.30 (1) (b), which directs how terms of imprisonment are to be calculated when a defendant is serving multiple, indeterminate sentences that run consecutively.

Penal Law § 70.30 provides for the calculation of terms of imprisonment by merging of concurrent sentences and addition of consecutive sentences. Although the primary function of the statute is to allow for the ready calculation of parole eligibility, we find it reasonable to apply section 70.30 to the question of whether a prisoner who has been given multiple sentences is subject to all his sentences for the duration of his term of imprisonment.

Concurrent and consecutive sentences are governed by different methods of calculation. If two or more indeterminate sentences are consecutive, then, with certain limitations not relevant here, the minimum and maximum sentences are added to form aggregate minimum and aggregate maximum wholes (Penal Law § 70.30 [1] [b]). In concurrent sentencing, on the other hand, “[t]he maximum term or terms of the indeterminate sentences and the term or terms of the determinate sentences shall merge in and be satisfied by discharge of the term which has the longest unexpired time to run” (Penal Law § 70.30 [1] [a]). Practically, the difference in prison term may be very significant to a defendant, depending on whether he was sentenced to consecutive or concurrent sentences. Nevertheless, in both situations, the Penal Law provides for a method whereby two or more sentences are made into one: the result either way is a single, indeterminate sentence. Underlying Penal Law § 70.30 is the proposition that concurrent sentences and consecutive sentences yield single sentences, either by merger or by addition.

We hold that for SORA purposes a prisoner serving multiple sentences is subject to all the sentences, whether concurrent or consecutive, that make up the merged or aggregate sentence he is serving. Buss was therefore still serving a sentence for his 1983 sex crime at the time SORA became effective in 1996.

The primary goals of SORA, one of which is to “protect the public from the danger of recidivism posed by sex offenders” (People v Stevens, 91 NY2d 270, 275 [1998] [internal quotation marks omitted], quoting Legislative Purpose or Findings, L 1995, ch 192, § 1), are best served by recognizing that a person who is returned to prison while on parole for a sex offense continues to be subject to his sex offense sentence for the duration of the aggregate sentence. Common sense and experience dictate that a defendant’s conduct while on parole is a reliable predictor of the risk he poses to society. In 1983, Buss committed a crime of a type that SORA subsequently denominated a sex offense. In 1987, while on parole, he demonstrated himself still willing to disregard the law. It is consistent with SORA’s aims that Buss was required to identify himself as a sex offender when ultimately released from prison, even though his sex offense sentence would have expired before SORA became effective had he not committed his later crime.

Defendant’s remaining contentions before us lack merit. Consequently we affirm his level three designation.

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

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Jones concur.

Order affirmed, without costs.

       According to his parole report, when Buss was declared delinquent in February 1987, he owed 2 years and 14 days.