author: Read, J. Pigott, J.

text:
    [869 NE2d 18, 838 NYS2d 18]
    The People of the State of New York, Respondent, v Cornell Louree, Appellant.
    Argued April 24, 2007;
    decided June 5, 2007

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Lynn W.L. Fahey of counsel), for appellant.
    The court’s failure to inform appellant that the determinate sentence he faced would be followed by postrelease supervision rendered his guilty plea less than knowing, intelligent, and voluntary and requires reversal without the need to seek plea withdrawal first in the trial court. (People v Catu, 4 NY3d 242; People v Seaberg, 74 NY2d 1; People v Nixon, 21 NY2d 338; North Carolina v Alford, 400 US 25; People v Francabandera, 33 NY2d 429; Kercheval v United States, 274 US 220; People v Van Deusen, 7 NY3d 744; People v Lopez, 71 NY2d 662; People v Francis, 38 NY2d 150; People v Marincic, 2 NY2d 181.)

      Charles J. Hynes, District Attorney, Brooklyn (Solomon Neubort and Leonard Joblove of counsel), for respondent.
    The order of the Appellate Division should be affirmed because defendant’s claim that his guilty plea was not entered knowingly and voluntarily is unpreserved for appellate review. (People v Patterson, 39 NY2d 288, 432 US 197; People v Kelly, 5 NY3d 116; People v Antommarchi, 80 NY2d 247; People v Ahmed, 66 NY2d 307; People v Michael, 48 NY2d 1; People ex rel. Battista v Christian, 249 NY 314; Cancemi v People, 18 NY 128; People v McLucas, 15 NY2d 167; People v Udzinski, 146 AD2d 245; People v Fleming, 70 NY2d 947.)
   OPINION OF THE COURT

Read, J.

Defendant Cornell Louree was indicted for criminal possession of a weapon in the third degree (Penal Law § 265.02), and criminal possession of a weapon in the fourth degree (Penal Law § 265.01). On September 18, 2003, he pleaded guilty to attempted criminal possession of a weapon in the third degree in exchange for a one-year prison sentence, or two years if a prior conviction in Connecticut qualified as a predicate felony in New York.

Because defendant requested an unusually long adjournment before sentencing, the trial judge also required him to plead guilty to criminal possession of a weapon in the third degree, with the understanding that he could later withdraw this plea and the count would be dismissed so long as he appeared in court for his scheduled sentencing on December 4, 2003, was not arrested in the meantime, and cooperated fully with the Probation Department in preparation of the presentence report. The judge informed him that

“[i]n the event you fail to fully comply with any or all of these conditions, I am not bound to impose the negotiated sentence, you will not be permitted to withdraw your guilty plea, and I am authorized by law to impose a higher sentence of up to seven years in jail. You understand that?”

Defendant answered “Yes.” The judge did not mention that a period of postrelease supervision would follow either the conditionally promised two-year or a potential seven-year sentence.

As it turned out, defendant did not fulfill any of the prerequisites for the more lenient sentence: he skipped his scheduled sentencing, he was arrested for robbery, and he did not cooperate in the preparation of his presentence report. In addition, the Connecticut conviction qualified as a felony. When defendant returned to court on December 22, 2003, his counsel moved to be relieved because defendant “wish[ed] to withdraw his plea and based on what he told me, I believe there will be a conflict.” The court denied the motion. Defendant did, in fact, eventually move to withdraw his plea, his counsel explaining that

“when he took the plea what [defendant] is telling me is that he was in his mind one hundred percent certain that he did not have a prior felony conviction in the State of Connecticut. That it, in fact, was a misdemeanor and if he had known that it was, in fact, a felony he would not have taken this plea.”

The trial judge denied the application.

After discussion of other topics not relevant to this appeal, a plea for leniency by defense counsel, and a short statement from defendant, the trial judge reviewed what had happened at the September hearing and afterwards, and the proceeding ended as follows:

“the court: . . . Pursuant to the plea agreement, I’m not going to — pursuant to your breach of the plea agreement, I’m not going to sentence you on the E felony. On motion of the People, move to withdraw his plea and dismiss the E felony?
“[district attorney]: That’s correct.
“the court: That would be done. Criminal Possession of a Weapon in the Third Degree. Therefore, it is the judgment of this Court that you are sentenced to a period — sentenced to seven years incarceration on the D violent felony offense followed by five years postrelease supervision. $200 surcharge imposed. $10 Crime Victims Assistance fee and $50 DNA registration fee imposed. Government will draw your blood.
“You’ve previously pled guilty — waived your right to appeal.
“These proceedings are completed. Officers take charge.
“the defendant: I can’t appeal?
“the court: You got seven. Take charge.”

The Appellate Division affirmed the judgment of conviction and sentence, concluding briefly that

“defendant’s contention that his plea was not knowingly, intelligently, and voluntarily entered because he was not informed that he would be subject to a mandatory period of post-release supervision is unpreserved for appellate review since he did not move either to withdraw his plea or vacate the judgment of conviction on that basis” (28 AD3d 680 [2d Dept 2006]).

The court also declined to review the issue in the exercise of its interest-of-justice jurisdiction, and expressed the view that our decision in People v Catu (4 NY3d 242 [2005]) did not require a different result. A Judge of this Court subsequently granted defendant leave to appeal, and we now reverse.

“A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (People v Ford, 86 NY2d 397, 402-403 [1995] [emphasis added]). “The court is not required to engage in any particular litany when allocuting the defendant, but due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant” (id. at 403 [internal quotation marks and citations omitted]). To fulfill this constitutional imperative, the trial judge must advise a defendant of the direct consequences of a plea and the resulting waiver of rights.

In Catu, we held that "[p]ostrelease supervision is a direct consequence of a criminal conviction” (4 NY3d at 244). Since a defendant contemplating a guilty plea “must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction” (id. at 245). Necessarily, then, a plea cannot be knowing, voluntary and intelligent if a defendant is ignorant of a direct consequence because of a deficiently conducted allocution. As a result, a defendant does not have to show that he would have declined to plead guilty if he had been correctly informed by the court (id.), and it is irrelevant that the prison sentence added to postrelease supervision is within the range of prison time promised at the allocution (People v Van Deusen, 7 NY3d 744, 745-746 [2006]).

Here, the People argue that defendant did not preserve the issue for appellate review, principally relying on People v Lopez (71 NY2d 662 [1988]). In Lopez, we observed that ordinarily “in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction under CPL 440.10,” because “failure to make the appropriate motion denies the trial court the opportunity to address the perceived error and to take corrective measures” (id. at 665-666 [citations omitted]). We did, however, note an exception to this general rule for the “rare case” where, for instance, a defendant’s factual recitation negates an essential element of the crime pleaded to, and the trial court fails in its duty to make further inquiry and instead accepts the plea (id. at 666). In such a case, “the defendant may challenge the sufficiency of the allocution on direct appeal, notwithstanding that a formal postallocution motion was not made,” as “the court’s attention should have been instantly drawn to the problem, and the salutary purpose of the preservation rule is arguably not jeopardized” (id.).

We similarly conclude that where a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion. In so deciding, we cannot shut our eyes to the actual or practical unavailability of either a motion to withdraw the plea under CPL 220.60 (3), or a motion to vacate the judgment of conviction under CPL 440.10 in these cases. If the trial judge does not mention postrelease supervision at the allocution, as happened here, a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge. But if the trial judge informs the defendant of postrelease supervision during the course of sentencing, as also happened here, a defendant may no longer move to withdraw the plea since a motion may only be made under CPL 220.60 (3) “[a]t any time before the imposition of sentence” (emphasis added). Finally, the omission at issue is clear from the face of the record and therefore not properly raised in a CPL article 440 motion.

Accordingly, the order of the Appellate Division should be reversed, defendant’s plea vacated and the case remitted to Supreme Court for further proceedings on the indictment.

Pigott, J.

(dissenting). Because I believe that defendant was required to preserve the issue for appellate review, I respectfully dissent. The record reveals that defendant was made aware of the postrelease component of his sentence at the sentencing proceeding (see generally People v Catu, 4 NY3d 242, 245 [2005]). Thus, defendant was required to preserve the issue as nothing in this case calls for the “rare case” exception to the preservation doctrine described in People v Lopez (71 NY2d 662, 666 [1988]). Here, defendant could have raised an objection to the sentencing judge and he would have then been able to raise the issue on his direct appeal (see People v Fulton, 30 AD3d 961 [4th Dept 2006], lv denied 7 NY3d 789 [2006]).

Accordingly, I dissent and would affirm the order of the Appellate Division.

Chief Judge Kaye and Judges Ciparick, Gbaffeo and Jones concur with Judge Read; Judge Pigott dissents and votes to affirm in a separate opinion in which Judge Smith concurs.

Order reversed, etc.

       In Catu, the trial judge’s failure to advise the defendant of postrelease supervision was, in fact, raised in a CPL article 440 motion. The People did not argue that this ground was apparent on the record and therefore the article 440 motion was improper. Accordingly, until today we had no occasion to decide whether a defendant may properly raise a Catu objection by way of a CPL article 440 motion. As stated in the text, we decide that a defendant may not.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [869 NE2d 10, 838 NYS2d 10]
    In the Matter of Worth Construction Company, Inc., Appellant, v Alan G. Hevesi, as Comptroller of the State of New York, et al., Respondents.
    Argued April 25, 2007;
    decided June 5, 2007

      POINTS OF COUNSEL

      Pechar & Abramson, PC., New York City (Alvin Goldstein of counsel), for appellant.
    I. The Comptroller’s determination of nonresponsibility must be vacated because he exceeded his constitutional jurisdiction and power. (Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v New York State Thruway Auth., 88 NY2d 56; Parsa v State of New York, 64 NY2d 143; Hamlin Beach Camping, Catering, & Concessions Corp. v State of New York, 303 AD2d 849; Matter of New York Pub. Interest Research Group v New York State Thruway Auth., 77 NY2d 86; Patterson v Carey, 41 NY2d 714.) II. The Thruway Authority did not and legally could not invite the Comptroller to approve or reject its contracts. (Blue Cross & Blue Shield of Cent. N.Y. v McCall, 218 AD2d 140, 89 NY2d 160; Matter of Callanan Indus. v White, 118 AD2d 167, 123 AD2d 462, 69 NY2d 601; Salla v County of Monroe, 64 AD2d 437, 48 NY2d 514, cert denied sub nom. Abrams v Salla, 446 US 909.)

      Andrew M. Cuomo, Attorney General, Albany (Edward Lindner, Barbara D. Underwood and Daniel Smirlock of counsel), for respondents.
    I. The Thruway Authority has the power to make the award of its contract to Worth Construction Co., Inc. subject to the review and approval of the State Comptroller. (Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d 337.) II. The court below properly dismissed the petition because the Comptroller has discretionary authority under article X, § 5 of the State Constitution to voluntarily review and approve Thruway Authority contracts. (Matter of New York Pub. Interest Research Group v New York State Thruway Auth., 77 NY2d 86; Patterson v Carey, 41 NY2d 714; Matter of McCall v Barrios-Paoli, 93 NY2d 99; Matter of Ronan v Levitt, 73 Misc 2d 35, 42 AD2d 10, 33 NY2d 514.) III. Sentence seven of article Y § 1 of the New York Constitution, prohibiting the Legislature from assigning administrative functions to the Comptroller, has no application whatever to this case. (Blue Cross & Blue Shield of Cent. N.Y. v McCall, 89 NY2d 160; Matter of New York Pub. Interest Research Group v New York State Thruway Auth., 77 NY2d 86.)
   OPINION OF THE COURT

Pigott, J.

In 1950, the New York State Thruway Authority passed a resolution pursuant to Public Authorities Law § 362 requesting that the New York State Comptroller “audit the funds of the Authority in the same manner as funds of a regular State agency are audited.” Because one of the Comptroller’s functions in auditing state agencies is the review and approval of agency contracts that exceed a sum certain (see State Finance Law § 112 [2] [a]), the Comptroller, at the Authority’s request, has conducted the review and approval of Authority contracts for over 50 years. Petitioner Worth Construction Company now contests that authority and argues that by disapproving a contract entered into between Worth and the Authority, the Comptroller exceeded his power under article X, § 5 of the New York Constitution. We disagree.

I.

In November 2004, after opening sealed bids for the rehabilitation of portions of the New York State Thruway and related facilities (the Project), the Authority advised Worth that it was the apparent low bidder. Pursuant to its statutory mandate to award contracts to the “lowest responsible bidder” (Public Authorities Law § 359 [1]), the Authority thereafter conducted an investigation into Worth’s “responsibility” as a contractor. During the course of that investigation, the Authority discovered that Worth purportedly had ties to organized crime and that one of Worth’s principals was the target of an ongoing federal bribery and municipal corruption investigation in Connecticut.

At the conclusion of the investigation, the Authority determined that Worth was not a “responsible contractor” but nonetheless gave Worth an opportunity to contest that finding. After Worth retained an independent monitoring service to monitor its activities relative to the Project, the Authority deemed Worth the “lowest responsible bidder” and forwarded a contract for its signature. An attachment to the contract, which was incorporated by reference and submitted to Worth for review, explicitly stated that “[u]nless otherwise provided by resolution of the Authority . . . this contract shall not be valid, effective or binding upon the Authority . . . until it has been approved by the State Comptroller and filed in his office.”

Pursuant to these terms, the Authority forwarded the contract to the Comptroller for his review and approval. The Comptroller, conducting his own investigation of Worth’s responsibility as a contractor, examined Worth’s purported ties to organized crime, the ongoing bribery and municipal corruption investigation, and alleged improprieties in Worth’s billing practices. The Comptroller held a meeting with Worth’s principals to discuss these matters; however, the meeting heightened the Comptroller’s concerns about Worth’s responsibility as a contractor, and in November 2005, the Comptroller issued a “vendor responsibility determination” finding that Worth was a “non-responsible bidder” and returned the contract to the Authority unapproved. The Authority accepted the Comptroller’s determination and rescinded its award of the contract to Worth.

Worth then commenced this CPLR article 78 proceeding against both the Authority and the Comptroller seeking, among other things, an order vacating the Comptroller’s nonresponsible bidder determination and directing the Authority to proceed with the contract. Worth specifically argued that it was beyond the Comptroller’s constitutional authority to make a determination of nonresponsibility with respect to Authority contracts. Supreme Court dismissed the petition, holding that the Comptroller had the discretionary authority under article X, § 5 of the New York Constitution to review and approve the contract at the Authority’s request (see 11 Misc 3d 513, 517 [Sup Ct, Albany County 2006]). The Appellate Division affirmed, holding that nothing in the New York Constitution precludes the Comptroller from reviewing or disapproving a contract entered into by a public corporation (see 32 AD3d 629, 630 [3d Dept 2006]). Worth appeals as of right pursuant to CPLR 5601 (b) (1), asserting that the Comptroller exceeded his constitutional authority. We affirm, and hold that the Comptroller, when acting pursuant to a request by a public corporation, has the discretion under article X, § 5 to review and approve contracts executed by that entity.

II.

Article X, § 5 of the New York Constitution directs that “[t]he accounts of every . . . public corporation . . . shall be subject to the supervision of the state comptroller.” As such, the Comptroller’s function with regard to public corporations is to provide “an independent oversight of [their] accounts” (Patterson v Carey, 41 NY2d 714, 725 [1977]). We have observed that article X, § 5 “pointedly employs the same language — ‘supervision of accounts’ — found in article V” of the New York Constitution (Patterson, 41 NY2d at 724, citing 3 Rev Rec, 1938 NY Constitutional Convention, at 2262). Article V, § 1 delineates the Comptroller’s account supervision responsibilities in relation to the State and its political subdivisions. There is a significant distinction between article V and article X, however. The Legislature has the express power to shape the Comptroller’s powers and duties vis-a-vis the State and its political subdivisions, but no authority to circumscribe the Comptroller’s powers and duties with regard to public corporations (see Patterson, 41 NY2d at 724). Indeed, article X grants the Comptroller the discretionary authority to supervise the accounts of public corporations, with the exercise of that authority being governed solely by individual responsibility and fidelity to one’s oath of office (see Matter of New York Pub. Interest Research Group v New York State Thruway Auth., 77 NY2d 86, 89-90 [1990]; Patterson, 41 NY2d at 724).

The extent of the Comptroller’s discretionary authority concerning the “supervision of accounts” of public corporations has never before been addressed by this Court, although we have addressed the extent of the Comptroller’s authority to supervise the accounts of political subdivisions (see Matter of McCall v Barrios-Paoli, 93 NY2d 99 [1999]). In McCall, we held that the language “supervision of the accounts” in article V, § 1 does not limit the Comptroller’s function “to financial audits or preclude inquiry into the efficiency and effectiveness of [a political subdivision’s] expenditure of State funds,” and that the authority to supervise the accounts left “ample room for wider inquiry by the Comptroller” (id. at 106). We also noted that the objective behind article V, § 1 was to protect the “independent character of the Comptroller’s audit function,” a goal that was accomplished by prohibiting the Legislature from assigning to the Comptroller unrelated duties, while “permitting the assignment of supervision of the accounts of political subdivisions and administrative duties incidental thereto” (id. at 107 [citations omitted]).

Similarly, article X, § 5 does not preclude the Comptroller from inquiring into the “efficiency and effectiveness” of a public corporation’s expenditure of its own funds where, as here, the public corporation expressly requests the Comptroller’s oversight. The review and approval functions undertaken by the Comptroller in this instance were incidental to the supervision of the Authority’s accounts because the contract called for the expenditure of a substantial sum of the Authority’s funds. Here, the Authority deemed it prudent for the Comptroller to investigate Worth’s responsibility, but retained the right to disregard the Comptroller’s disapproval of the contract had it chosen to do so. Although the Comptroller was permitted to conduct some oversight concerning Worth’s responsibility as a contractor, the ultimate determination in that regard rested with the Authority. Based on the foregoing, we conclude that the Comptroller had the discretionary authority to review and approve the contract and, by doing so at the request of the Authority, did not exceed his constitutional authority.

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

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

Order affirmed, with costs.

      . Public Authorities Law § 362 provides, in pertinent part, that “[a]t the request of the authority, ... all other state officers, departments, boards, divisions and commissions shall render services within their respective functions.”

      . We express no opinion as to whether the Comptroller has the power to review and approve a corporation’s contracts absent a request from the public corporation that the Comptroller perform those functions.


author: Pigott, J. Smith, J.

text:
    [870 NE2d 118, 838 NYS2d 800]
    The People of the State of New York, Appellant, v Jeffrey Kozlow, Respondent.
    Argued March 20, 2007;
    decided April 26, 2007

      POINTS OF COUNSEL

      Janet DiFiore, District Attorney, White Plains (Robert K. Sauer and Anthony J. Servino of counsel), for appellant.
    I. Defendant’s textual communications to “JohnInYonkers914” depicted obscene material within the meaning of the statute he was convicted of violating. (Chevron U.S.A Inc. v Natural Resources Defense Council, Inc., 467 US 837; People v Owusu, 93 NY2d 398; People v Gallicchio, 189 Misc 2d 182; People v Foley, 94 NY2d 668; People v Barrows, 273 AD2d 246; Miller v California, 413 US 15; American Libs. Assn. v Pataki, 969 F Supp 160.) II. If this Court should find that messages containing textual communications only are encompassed by Penal Law § 235.22, the statute would not be unconstitutionally vague. (People v Skya, 6 Misc 3d 188; People v Shack, 86 NY2d 529; Rowan v Post Office Dept., 397 US 728; Broadrick v Oklahoma, 413 US 601; Kovacs v Cooper, 336 US 77; People v Dietze, 75 NY2d 47; People v Bright, 71 NY2d 376; Colautti v Franklin, 439 US 379; United States v Harriss, 347 US 612; People v Nelson, 69 NY2d 302.) III. Defendant’s claim that the prosecution improperly amended its theory of prosecution in contravention of the indictment and the bill of particulars finds no support in the record. (People v Green, 96 NY2d 195; People v Charles, 61 NY2d 321; People v Grega, 72 NY2d 489; People v Roberts, 72 NY2d 489; People v Rivera, 84 NY2d 766.)

      Stillman, Friedman & Shechtman, PC., New York City {Nathaniel Z. Marmur of counsel), for respondent.
    I. The communications did not “depict” any prohibited conduct because they consisted solely of words and nonobscene pictures. (People v Foley, 257 AD2d 243, 94 NY2d 668; American Civ. Libs. Union v Reno, 929 F Supp 824, 521 US 844; People v Stuart, 100 NY2d 412; People v Shack, 86 NY2d 529; New York v Ferber, 458 US 747; Ginsberg v New York, 390 US 629; Bookcase, Inc. v Broderick, 18 NY2d 71; People v Bookcase, Inc., 14 NY2d 409; Matter of Marx v Bragalini, 6 NY2d 322.) II. To construe “depict” to include written descriptions would make Penal Law § 235.22 void for vagueness as applied here under the New York and United States Constitutions. (People v Barrows, 273 AD2d 246; People v Bright, 71 NY2d 376; United States v Harriss, 347 US 612; People v Garson, 6 NY3d 604; People v Bakolas, 59 NY2d 51.) III. The indictment was constructively amended. (People v

      Perez, 83 NY2d 269; People v Iannone, 45 NY2d 589; People v Charles, 61 NY2d 321; People v Kaminski, 58 NY2d 886; People v Jean, 146 AD2d 803; People v AJS Merchandising, 162 AD2d 990; People v Greaves, 1 AD3d 979; People v Brown, 221 AD2d 353; People v Chicas, 204 AD2d 476; People v Taplin, 1 AD3d 1044.)

      Andrew M. Cuomo, Attorney General, New York City (Barbara D. Underwood, Daniel Smirlock and Megan P Davis of counsel), amicus curiae.
    Penal Law § 235.22 applies to purely textual communications. (American Libs. Assn. v Pataki, 969 F Supp 160.)

      Michael E. Bongiorno, District Attorney, New York City (Karen Schlossberg and Mark Dwyer of counsel), for New York State District Attorneys Association, amicus curiae.
    Penal Law § 235.22 prohibits indecent Internet communications attempting to lure minors into sexual encounters whether or not the communications include visual imagery. (People v Garson, 6 NY3d 604; American Libs. Assn. v Pataki, 969 F Supp 160; People v Foley, 94 NY2d 668; People v Gallicchio, 189 Misc 2d 182; People v Skya, 6 Misc 3d 188.)
   OPINION OF THE COURT

Pigott, J.

We hold that a defendant charged with attempted dissemination of indecent material to minors in the first degree under Penal Law § 110.00 and former § 235.22 (L 1996, ch 600, § 6) may properly be convicted under that statute even though his communications contained no nude or sexual images.

I.

On March 4, 2004, defendant Jeffrey Kozlow entered an Internet chat room and, by instant messaging, approached a person with the screen name “JohnInYonkers914,” who immediately gave his age as 14. “[I]’m 42; [I]’m into younger guys,” Kozlow wrote, “u into guys my age?” (Punctuation added.) Unbeknownst to Kozlow, JohnInYonkers914 was an undercover investigator. Later that month, the two exchanged photographs of themselves, fully clothed, the investigator sending photographs of an adolescent boy. Kozlow asked JohnlnYonkers914 about his sexual orientation and, repeatedly, about masturbation. In April, Kozlow began to describe, in the text of his instant messages, sexual acts he enjoyed. He also described various imagined sexual encounters they might have, involving oral and anal sex. Kozlow did not, however, send any pornographic images or other pictorial representations of nudity or sex.

In May, the two made plans to meet in Westchester County. Although Kozlow repeatedly told JohnInYonkers914 that at first they were “just going to talk,” he also mentioned that he would “get a room” if the two decided to have sex, and he described sexual acts in which they might engage. Kozlow cancelled these plans but, in June, after JohnInYonkers914 said that his parents had given him permission to travel into Manhattan by himself, Kozlow quickly suggested a meeting. The two agreed to meet at 11:30 a.m. on June 28, 2004 at a magazine store at Grand Central Terminal. Kozlow was arrested leaving the store at 11:28.

Kozlow was charged with five counts of attempted dissemination of indecent material to minors in the first degree (Penal Law § 110.00, former § 235.22). His bench trial commenced in County Court in May 2005. The evidence primarily consisted of transcripts of the instant messages and of e-mails. Kozlow moved to dismiss the charges, arguing, among other things, that Penal Law § 235.22 applied only when a defendant’s communication to a minor involved indecent pictorial representations. County Court denied Kozlow’s motion, and ultimately convicted him on all counts.

The Appellate Division reversed defendant’s conviction and dismissed the indictment, reasoning that Kozlow’s communications could not have “depicted” sexual conduct within the meaning of Penal Law § 235.22 (1), since they included no visual, sexual images (31 AD3d 788 [2006]). A Judge of this Court granted leave to appeal, and we now reverse.

II.

In 1996, the New York State Legislature introduced statutes criminalizing the transmission of indecent material to minors over the Internet. Former Penal Law § 235.22 provided that, to be guilty of disseminating indecent material to minors in the first degree, a person must intentionally communicate by computer with a minor “knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors” (former Penal Law § 235.22 [1] [emphasis added]). Additionally, the person must use the computer communication to lure a minor “to engage in sexual intercourse, oral sexual conduct or anal sexual conduct, or sexual contact with him, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his benefit” (former Penal Law § 235.22 [2] [L 2003, ch 264, § 29]). This first-degree offense was designated a class D felony.

We begin with a brief observation about the ordinary meaning of the word “depict.” While one meaning of “depict” is represent in a picture, and the etymology of the word lies in the Latin “pingere” (“to paint”), the word “depict” also has a standard sense of represent or portray in words and it has been used in that manner since the colonial era (see 4 Oxford English Dictionary 477 [2d ed 1989]).

Turning to legislative intent, the purpose of the New York State Legislature in enacting Penal Law § 235.22 in 1996 (see L 1996, ch 600, § 6) may be discerned from the range of concerns expressed by its proponents and sponsors. In the mid-1990s, law enforcement officials and legislators were alarmed by the increasing use of computers by pedophiles to contact minors. Lawmakers proposed section 235.22 partly in response to the highly publicized case of Alan Paul Barlow (see Governor’s Mem approving L 1996, ch 600, 1996 McKinney’s Session Laws of NY, at 1901; Letter of Westchester County District Attorney to Governor Pataki, Feb. 13, 1996, Bill Jacket, L 1996, ch 600, at 25). Posing as a 13-year-old boy, Barlow, a 51-year-old resident of Seattle, Washington, wrote sexually explicit e-mails to a 14-year-old girl in Westchester County. He was arrested in New York in June 1994 after arranging to meet the girl near her home, and was charged with endangering the welfare of a child — a misdemeanor. The sponsors of the 1996 legislation, explaining how such incidents justified the proposed laws, described the e-mail communications they sought to criminalize as predominantly textual. “Typically, the pedophile, posing as a minor, makes contact, wins the confidence of the minor and slowly begins to draw the victim into discussions of sex and sexuality.” (Senate Introducer’s Mem in Support of L 1996, ch 600, 1996 McKinney’s Session Laws of NY, at 2524 [emphasis added].)

We therefore reject defendant’s contention that the Legislature intended to limit the scope of Penal Law § 235.22 to sexual predators who use images, rather than words, to lure minors. Nowhere in the history of the statute do we find evidence of such a narrow intent. On the contrary, it is clear that the legislators intended to criminalize the activities of adults who engage minors in “sexually infused communication” (Senate Introducer’s Mem in Support at 2524 [emphasis added]).

Moreover, the Legislature was surely aware that a sexually explicit text may be used as a means of seduction just as effectively as a sexual image. The lawmakers observed that pedophiles first try to win the confidence of their victims (Senate Introducer’s Mem in Support at 2524); they could not have thought that this process was limited to the transmission of pornographic images. Indeed, the logic of communication dictates just the opposite — that images alone would not enable the sender to entice a minor to a meeting. Defendant’s argument, therefore, that the Legislature was seeking to criminalize the luring of a child into a sexual encounter by transmission of visual images, while leaving a loophole allowing a predator to lure a child into sex through transmission of words alone, falls of its own weight. As the Attorney General points out in his amicus brief urging reversal, such an interpretation would render the law almost useless; a recent national study suggests that only 18% of perpetrators of Internet-related sex offenses against minors transmitted sexual pictures to their victims (see Janis Wolak et al., Internet-initiated Sex Crimes against Minors: Implications for Prevention Based on Findings from a National Study, 35 J Adolescent Health 424.ell, 424.el6-424.el7 [2004], available at <http://www.xmh.edu/ccrc/pdf/CV71.pdf>).

Defendant alternatively contends that the Legislature may have intended a limited proscription of transmission of visual depictions of sexuality to minors because of concern that the statute would run afoul of constitutional challenges if it applied to purely textual communications. We note, however, that the sponsors of the bill expressly mentioned several respects in which it was drafted so as to be “consistent with the recently passed Federal Communications Decency Act and Constitutional requirements” (Senate Introducer’s Mem in Support at 2524). For example, the bill provides a defense for those who make good faith efforts to avoid contacts with minors, and the sponsors note that the accompanying definition of “harmful to minors” was intended to be consistent with Federal law (id. at 2524-2525). But nowhere do any legislators suggest that the word “depict” was chosen to ensure consistency with Federal law.

It is certainly true that the preexisting language of Penal Law § 235.21 distinguishes between a “visual representation or image . . . which depicts nudity, sexual conduct or sado-masochistic abuse” (Penal Law § 235.21 [1] [a]) and “explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse” (Penal Law § 235.21 [1] [b]). The words “depicts . . . nudity, sexual conduct or sadomasochistic abuse” were repeated in the 1996 amendments, in both section 235.21 (3) and section 235.22 (1), and the corresponding language regarding verbal descriptions and narrative accounts was not used. But we cannot conceive that this outcome was the result of a deliberate decision to limit the scope of the statute to pictorial representations, at the time that it was being expanded into the multifaceted area of computer communications. On the contrary, we think it far more likely that legislators considered the word “depict” broad enough in meaning to cover a wide range of indecent materials.

Nor can defendant find refuge in People v Foley (94 NY2d 668 [2000], cert denied 531 US 875 [2000]), in which we upheld the constitutionality of Penal Law § 235.22. In that case, defendant sent pictures of minors engaging in sexual acts to a person he believed to be a 15-year-old girl, whom he met in an Internet chat room. Accordingly, the language of our opinion turned more than once to pedophiles’ use of sexual images to lure minors (see e.g. id. at 681). But Foley does not stand for the proposition that a sexual predator must send his target sexual images in order to violate Penal Law § 235.22. Indeed, the statute was correctly construed to criminalize the use of any “sexually explicit communications” intended to lure children into sexual conduct (94 NY2d at 674 [emphasis added]).

Finally, we reject defendant’s theory that Penal Law § 235.22 is void for vagueness if the word “depict” is interpreted to include textual descriptions. A legislative decision to use language that is imprecise and open-ended “does not render a statute fatally vague if that language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices’ ” (People v Shack, 86 NY2d 529, 538 [1995], quoting United States v Petrillo, 332 US 1, 8 [1947]). We see no reason to depart from our holding in Foley that the statute is not unconstitutionally vague (94 NY2d at 680-682 [upholding section 235.22 against a vagueness challenge to subdivision (2)]).

Because the Appellate Division reversed on the basis of its ruling on the “depiction” issue, it saw no need to address the parties’ other contentions. Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts and issues raised but not determined on the appeal to that Court.

Smith, J.

(dissenting). We all agree that what defendant did should be a felony. But I conclude that, unfortunately, the Legislature did not make it one until it amended the statute in 2007.1 therefore dissent.

The primary meaning of “depict,” in every dictionary I have consulted, is to represent by a picture (Merriam-Webster’s Collegiate Dictionary 310 [10th ed 1993]; Random House-Webster’s College Dictionary 363 [1991]; 4 Oxford English Dictionary 477 [2d ed 1989]). As all these dictionaries say, “depict” can also be used as a synonym for “describe,” but if the Legislature intended to reach both pictures and words the obvious way to do so was to say “depicts or describes.” Elsewhere in article 235 of the Penal Law, the Legislature used “depicts” alone when it was referring only to visual representations (Penal Law § 235.21 [1] [a] [“picture, photograph ... or similar visual representation . . . which depicts”]); “descriptions” when it referred to purely verbal material (Penal Law § 235.21 [1] [b] [“verbal descriptions or narrative accounts”]); and “depicts or describes” and “depiction or description” when it referred to both (Penal Law § 235.00 [1] [“depicts or describes in a patently offensive manner”; § 235.00 [6] [“explicit depiction or description” of certain conduct]).

From a reading of article 235 as a whole, it seems fairly clear that the Legislature was using “depicts” in its primary, narrow sense. In construing a criminal statute, we should not give it a broader interpretation than the one a reasonable reader would draw from its text (see People v Case, 42 NY2d 98, 101 [1977]; People v Gottlieb, 36 NY2d 629, 632 [1975]). It is true, as the majority points out (majority op at 558-559), that comments in the legislative history — not specifically focused on the meaning of “depicts” — show that some of the legislation’s supporters thought it would reach nonpictorial material, but this does not seem to me enough reason to reject the apparent meaning of the statute itself.

If anything, I would give more weight to the expressed views of lawyers for the State who argued, in litigation that followed the statute’s enactment, that “depicts” referred only to images, not to words. The State took this position in two cases, in which it defended the constitutionality of two sections of the 1996 legislation directed at the use of the Internet by sexual predators. The State plainly thought then that the more narrowly the statutes were read, the likelier they were to be upheld. Thus the Attorney General in American Libs. Assn. v Pataki (969 F Supp 160 [SD NY 1997]), and both the Attorney General and the District Attorney in People v Foley (94 NY2d 668 [2000]), argued that the legislation covered only images.

The State’s arguments had mixed success. Penal Law § 235.21, which prohibits disseminating certain material to a minor even where there is no attempt to engage the minor in sexual activity, was invalidated by the Federal District Court in the American Libraries case, and is no longer enforced. In the course of its ruling, the District Court concluded — mistakenly, I believe— that the meaning of “depicts” was not as narrow as the Attorney General said (969 F Supp at 178 n 9). On the other hand, in Foley, we held that the statute involved here, Penal Law § 235.22, was constitutional, and in doing so we seemed to adopt the State’s narrow reading of “depicts.” Four times in the Foley opinion, we described the statute as prohibiting the dissemination of “images” (94 NY2d at 676 [“prohibiting the dissemination of graphic images”], 681 [“dissemination of harmful, sexual images”], 682 [“dissemination of a certain category of images”], 684 [“transmission of sexually graphic images”]). I acknowledge that our decision in Foley did not turn on the distinction between images and words, and I do not question the State’s right to change its mind. But its switch does not inspire confidence in the interpretation it now adopts.

The majority argues that the Legislature could not have intended a narrow meaning of “depicts,” because that meaning would interfere with the legislative purpose. But the Legislature had more than one purpose in 1996; and its purposes may have contradicted each other, because the Legislature chose to use identical words in describing two significantly different crimes.

The 1996 legislation added computer transmissions to the definition of the existing offense of disseminating indecent material to minors, and added “in the second degree” to that offense’s title. The second degree offense may be committed just by knowing dissemination, without any attempt to induce conduct by the minor (Penal Law § 235.21). The same legislation also created the new offense of disseminating indecent material to minors in the first degree (Penal Law § 235.22), the crime at issue here, which can be committed only by one who “importunes, invites or induces a minor to engage in” certain sexual conduct. Sending a communication that “depicts” particular material is an element of both offenses (Penal Law § 235.21 [3]; § 235.22 [1]).

The statute creating the new form of the second degree offense stood, as the American Libraries case was to show, on shaky constitutional ground, and the Legislature had every reason to write it as narrowly as possible in the hope of withstanding a challenge. There was no reason to be equally cautious in defining the first degree crime; indeed, I cannot see why it should not be a felony to invite a minor to have sex by means of any electronic communication (though even the newly-amended 2007 version of the statute does not go that far). I do not know why the 1996 Legislature chose to use the same narrow language in defining the first-degree crime that it did in defining the lesser one. But I do not believe that language reaches the admittedly heinous behavior of defendant in this case, and I think the Appellate Division was right to reverse his conviction.

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

Order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]) and issues raised but not determined on the appeal to that Court.

      . In March 2007, Penal Law § 235.22 (1) was amended to add the words “or describes, either in words or images” directly after the word “depicts.”

      . See Dennis Hevesi, Seattle Man Charged In Sex Conversations On Electronic Mail, New York Times, June 26, 1994, sec 1, at 28; Elsa Brenner, Crime Moves Into New Arenas And Justice Rushes to Catch Up, New York Times, Sept. 18, 1994, sec 13 (Westchester), at 1; Kim Murphy, Youngsters Falling Prey to Seducers in Computer Web, Los Angeles Times, June 11,1995, sec A, at 1; Seattle Police Sex or Kidnapping Offender Information Bulletin regarding Alan Paul Barlow, Sept. 14, 2000, <http://webl.seattle.gov/Police/ SexOffender/DataFiles/BarlowAlanP.pdf>, cached at <http://www. courts.state.ny.us/reporter/webdocs/BarlowAlanEpdf>.

      . “ ‘Harmful to minors’ means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it:
      “(a) Considered as a whole, appeals to the prurient interest in sex of minors; and
      “(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
      “(c) Considered as' a whole, lacks serious literary, artistic, political and scientific value for minors.” (Penal Law § 235.20 [6].)

      . The Appellate Division cited Foley (94 NY2d at 681) in support of its holding.


author: Ciparick, J.

text:
    [869 NE2d 641, 838 NYS2d 465]
    The People of the State of New York, Respondent, v Alfonso Washington, Appellant.
    Argued April 26, 2007;
    decided June 7, 2007

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Sara Gurwitch and Richard M. Greenberg of counsel), for appellant.
    I. Where Alfonso Washington explicitly stated that he did not want anything to happen to Seven — the alleged target of the conspiracy — until he, Mr. Washington, was released from jail, the undercover officer himself understood that the only agreement was for him to look for Seven, and the discussions between the undercover officer and Mr. Washington had not even progressed to the point where they discussed money, there is legally insufficient evidence of an agreement to kill Seven. (United States v Jimenez Recio, 537 US 270; Iannelli v United States, 420 US 770; People v Caban, 5 NY3d 143; People v Berkowitz, 50 NY2d 333; United States v Wardy, 777 F2d 101; People v Bavisotto, 120 AD2d 985; People v McGee, 49 NY2d 48; People v Schwimmer, 66 AD2d 91, 47 NY2d 1004; United States v Feola, 420 US 671; United States v Rosenblatt, 554 F2d 36.) II. In the alternative, there is legally insufficient evidence of an agreement to kill Seven because the purported agreement was conditioned on Alfonso Washington being released from jail — a condition he could not control and that was not likely to occur in the foreseeable future. (United States v Melchor-Lopez, 627 F2d 886; United States v Anello, 765 F2d 253; United States v Brown, 946 F2d 58; United States v Palmer, 203 F3d 55; United States v Dworken, 855 F2d 12; United States v Prince, 883 F2d 953; United States v Podolsky, 798 F2d 177; United States v Feola, 420 US 671; Jackson v Virginia, 443 US 307.)

      Robert T. Johnson, District Attorney, Bronx (Na Na Park, Joseph N. Ferdenzi and Nancy D. Killian of counsel), for respondent.
    I. The evidence was legally sufficient to prove defendant entered into an agreement to hire the undercover police officer to kill Seven. (People v Rossey, 89 NY2d 970; People v Bleakley, 69 NY2d 490; People v Ford, 66 NY2d 428; People v Norman, 85 NY2d 609; People v Deegan, 69 NY2d 976; People v Caban, 5 NY3d 143; People v Schwimmer, 66 AD2d 91; People v Berkowitz, 50 NY2d 333; People v McGee, 49 NY2d 48; United States v Jones, 455 F3d 134.) II. Defendant’s release from prison did not negate the preexisting conspiracy since his release was not a condition precedent to reaching an agreement, but a condition on when the killing would occur. (People v Caban, 5 NY3d 143; United States v Feola, 420 US 671; United States v Wardy, 777 F2d 101; United States v Melchor-Lopez, 627 F2d 886; United States v Anello, 765 F2d 253; United States v Podolsky, 798 F2d 177; United States v Sharif 817 F2d 1375; United States v Palmer, 203 F3d 55; United States v Yerli, 857 F2d 1480; United States v Prince, 883 F2d 953.)
   OPINION OF THE COURT

Ciparick, J.

The question presented by this appeal is whether a conditional agreement to murder a person in the future can be subject to prosecution under our conspiracy law. In particular, we are asked to determine whether evidence presented at defendant’s nonjury trial was legally sufficient to support his conviction for conspiracy in the second degree (see Penal Law § 105.15). We conclude that the evidence presented was sufficient to support the conviction and that the contingencies imposed did not negate the existence of a conspiratorial agreement.

Defendant, while incarcerated at Bikers Island on child endangerment and promotion of prostitution charges, confided in fellow inmate, Martin Mitchell, who, unbeknownst to defendant, was a government informant, that he was willing to pay $5,000 to have the 14-year-old complaining witness in his child endangerment case killed. Mitchell, who was nearing release from Bikers Island, informed a New York City Police Department (NYPD) detective of his conversation with defendant. At the detective’s request, Mitchell again met with defendant and told defendant that he knew of a hit man who would kill the intended victim. During this conversation defendant gave Mitchell a telephone number so that he could make contact with defendant’s associates once he was released in order to arrange for the contract killing.

On August 23, 2002, Mitchell, who was now released from incarceration, visited defendant at Bikers Island. Their conversation was recorded as Mitchell was wired with a tape recorder at the request of the NYPD. During this meeting, defendant changed the intended victim of the contract killing from the complaining witness to a rival named “Seven,” who had months earlier allegedly shot defendant in the head. Defendant also stated that he would now pay $4,000 to have Seven killed and expressed optimism that he would soon be getting out of jail.

A week later, Mitchell and an undercover officer, who posed as a hit man and was equipped with a hidden tape recorder, visited defendant at Bikers Island. Defendant, Mitchell and the undercover discussed that the complaining witness was to be left alone and that the now intended target of the killing would be Seven. In the presence of the undercover, Mitchell told defendant that they would charge $4,000 for the hit. Defendant instructed the undercover to telephone coconspirator Crystal Rhodes to obtain information on contacting another of defendant’s associates named Kenny so they could discuss the plan for killing Seven. Defendant wrote Rhodes’s telephone number on a piece of paper for the undercover.

As defendant instructed, the undercover called Rhodes, who provided two telephone numbers to contact Kenny. The undercover called both numbers and an unidentified female answered and informed him that Kenny was unavailable. During the second call, the undercover discovered that Kenny was currently incarcerated.

On September 9, 2002, the undercover again called Rhodes, who attempted a three-way call with herself, defendant and the undercover, but because of a technical difficulty the three-way call was not established. Rhodes then relayed messages back and forth between the undercover and defendant. The undercover advised defendant that Kenny was presently incarcerated, at which time defendant agreed to have the undercover visit him the following Friday at Rikers Island.

On September 13, 2002, the undercover, who was again equipped with a tape recorder, returned to Rikers Island for another visit with defendant. During that conversation, defendant instructed the undercover to “[j]ust hold the girl” and, in regard to the other intended victim, to “wait [until he] g[o]t out . . . because [he wanted to] put [his] hands on some major money.” The undercover inquired as to the identity of the intended victim, and defendant replied: “The one that I want done . . . [is the one] who got me set up for the shot. I was shot right here in the head . . . [His name is] Seven.” Defendant further stated that he knew that Seven lived in Manhattan, but did not know the exact address; defendant then gave a general description of the location of Seven’s apartment. Defendant also described Seven as being “six-one, six-two, slender build, real dark . . . [n]o gold teeth.” Defendant continued: “When you [are] in jail, you ain’t got nothin[g] . . . ‘[H]ere, take this thousand dollars.’ I can’t do that in jail, there’s no money in my pocket in jail ... all I got is my word.” Defendant goes on to state that: “If I say its gonna happen, [you] know, to the best of my abilities, if it didn’t happen, it means I got shot again or something . . . [something to really prevent it from happening . . . I really want him bad.”

Additionally, during this visit, defendant stated that he will “try to keep a tab on [Seven]” and the undercover stated that he will “open [his] eyes and go out lookin[g].” Defendant further stated that a woman he knows, Rabia Walker, “runs into him every now and then” and that “she could show [the undercover] the building” where Seven lives. The undercover then told defendant that he would take pictures of individuals fitting Seven’s description at the building where Seven supposedly lived and show them to Walker for a positive identification. On September 20, 2002, the undercover spoke to Rhodes by telephone. Rhodes indicated that she was aware of the plan to have him take pictures of individuals matching Seven’s description and that the pictures would be presented to Walker for identification. Rhodes then gave the undercover Walker’s telephone number.

On September 22, 2002, the undercover called Walker, who acknowledged that she too knew of the plan to kill Seven and that she was to identify Seven from pictures that he would show her. The next day, the undercover telephoned Walker, at which time she stated that “there’ll be no payments made or anything because [defendant] doesn’t want anything done until he comes home.” Shortly thereafter, defendant was arrested and charged with conspiracy in the second degree.

After a nonjury trial, Supreme Court decided that defendant and Mitchell entered into an agreement to fulfill defendant’s intention to eliminate Seven. Supreme Court also found that “there were overt acts sufficient in this case as to constitute the legal prerequisite for a conspiracy in the second degree.” The Appellate Division unanimously affirmed, holding that “the agreement to kill the intended victim remained firm, notwithstanding that defendant wanted the killing postponed [and that] evidence also established numerous overt acts in furtherance of the agreement, including steps taken to enable the hired killer to locate and identify the intended victim” (29 AD3d 362, 362-363 [2006]). A Judge of this Court granted leave to appeal, and we now affirm.

Analysis

Defendant argues that the evidence against him was legally insufficient to support a finding that he entered into an agreement to kill Seven since he conditioned any action on his release from jail, he did not enter into an agreement to have Seven killed but only found and identified, and that there was no agreement since he and the undercover never discussed price. The People argue that under a sufficiency standard, there was ample evidence offered at trial that proved that defendant entered into an agreement to kill Seven, overt acts in furtherance of that goal were committed and defendant did not place a condition on the agreement that prevented the formation of the agreement itself to kill Seven.

Section 105.15 of the Penal Law provides that “[a] person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.” Furthermore, it is well settled that “[a] conspiracy consists of an agreement to commit an underlying substantive crime . . . , coupled with an overt act committed by one of the conspirators in furtherance of the conspiracy” (People v Caban, 5 NY3d 143, 149 [2005]).

We are here presented with the question whether conditions placed on an agreement can negate the existence of a conspiracy. The federal circuit courts provide some guidance in this regard since they have considered whether a purported agreement that is conditioned by a defendant can be considered an agreement to commit an unlawful act under conspiracy law. The First and Eighth Circuits have adopted the approach that an agreement with a condition will be effective only if the defendant subjectively believes the condition is likely to be fulfilled (United States v Anello, 765 F2d 253, 262 [1st Cir 1985]; United States v Brown, 946 F2d 58, 61 [8th Cir 1991]). The Appellate Division here relied upon the First Circuit’s holding in United States v Palmer (203 F3d 55, 64 [1st Cir 2000]), which followed Aurelio, where the federal court held that “[Liability should attach if the defendant reasonably believed that the conditions would obtain.” In Anello, the defendant had conditioned his purchase of marijuana on its quality. The defendant, however, proceeded with obtaining the funds to purchase the drugs in anticipation that his quality concerns would be met. The court found “that the ‘quality’ condition was unlikely to prove a serious impediment” (Anello, 765 F2d at 263) to the formation of the agreement to purchase the marijuana, since the defendant subjectively believed that the condition would be fulfilled and, as such, proceeded to fulfill his obligations under the agreement.

Three other circuits take a different approach, holding that conditions to an agreement are legally irrelevant (see United States v Grassi, 616 F2d 1295, 1302 [5th Cir 1980]; United States v Prince, 883 F2d 953, 958 [11th Cir 1989]), unless the conditions are so unlikely to be met that the agreement is illusory (United States v Podolsky, 798 F2d 177, 179 [7th Cir 1986]). We need not go as far as this to resolve this case; even under the Anello, Palmer and Brown test, defendant’s conviction would be upheld. Defendant reasonably believed the condition to the execution of the planned murder — his release from prison — would occur.

Defendant asks us to reject all the federal cases just cited in favor of United States v Melchor-Lopez (627 F2d 886, 891 [9th Cir 1980]), which he reads as holding that there is no legally effective agreement if conditions are set but not fulfilled. This is a misreading of Melchor-Lopez, which involved not a conditional agreement but the absence of any agreement. In Melchor-Lopez, “government agents produced $80,000 in an effort to induce Melchor-Lopez to bring heroin into the United States for sale, [but] he steadfastly refused to agree to any such transaction, insisting that any transfer would have to be made in San Luis, Mexico” (627 F2d at 889). The Ninth Circuit held that “the evidence fell far short of showing an agreement because [the defendant] firmly insisted on certain conditions unacceptable to his would-be co-conspirators” (627 F2d at 891). Melchor-Lopez thus stands for the proposition that “conditions” demanded by a party which are “unacceptable” to the other party may create an inability for the parties to enter into an agreement.

Here, neither party imposed a condition on entry into the agreement that was unacceptable to the other. Similarly, we have previously held that an “agreement” to murder a victim is effectuated when the coconspirators accept the defendant’s invitation to kill the victim (see Caban, 5 NY3d at 149). Thus, the determinative factor is whether there was an agreement— not whether agreed-upon conditions made the performance of the agreement contingent upon the happening of an event.

Here, the conditions that defendant imposed on the performance of the agreement — to commit a murder — were that nothing was to happen to Seven until defendant was released from jail and was able to secure money to pay for the hit. These requirements were not “conditions” negating the existence of an agreement to kill Seven — they were terms of the agreement. In other words, defendant’s wish to delay the killing and payment until he was released from prison was not a demand in negotiations that prevented the parties from reaching the agreement to kill Seven, but a temporal component of the agreement accepted by both parties.

A conspiratorial agreement will be found where there is a “concrete and unambiguous . . . expression of [defendant’s] intent to violate the law” (Caban, 5 NY3d at 149, quoting People v Schwimmer, 66 AD2d 91, 95 [2d Dept 1978], affd 47 NY2d 1004 [1979] for reasons stated below). Both Mitchell’s and the undercover’s testimony reveal that defendant entered into an agreement to commit the underlying substantive crime of murder in the first degree, and that there were overt acts committed in furtherance of that goal (see Caban, 5 NY3d at 149).

Defendant also proposes that since the amount to be paid to the undercover was not agreed upon there could be no conspiratorial agreement. Clearly, there was evidence that the parties agreed upon the price. In the initial meeting between defendant and Mitchell, defendant mentioned a $4,000 price, and defendant could not have doubted that Mitchell had passed that number on to the undercover (the supposed hit man). Moreover, at a later meeting in the presence of the undercover, Mitchell repeated that figure to defendant as the price for the hit, and defendant responded, “[y]eah, yeah, yeah.” Thereafter, the parties worked out the details of the conspiracy, defendant dispatched the undercover to locate the intended victim, and defendant coordinated with his associates outside of prison to assist in locating and identifying the intended victim. The evidence was therefore sufficient to support the conclusion by the finder of fact that an agreement had been made.

Therefore, viewing the evidence in a light most favorable to the People and drawing all reasonable inferences in their favor as we must, we conclude that defendant’s conviction was supported by the evidence presented at trial.

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

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

Order affirmed.

      . Defendant considered having Seven killed while Seven was incarcerated at Bikers Island at the same time as defendant; however, Seven was apparently released on bail before defendant could have him killed. Defendant, while reminiscing with Mitchell about the lost opportunity, stated that “it would be cheaper to get it done in jail anyway . . . 5 or 6 hundred [dollars] as opposed to the 4 thousand [dollars] I was gonna pay in the streets.”

      . The standard for determining legal sufficiency “is whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt” (People v Rossey, 89 NY2d 970, 971 [1997]; see also People v Bleakley, 69 NY2d 490, 495 [1987]). All reasonable inferences must be drawn in the People’s favor (see People v Ford, 66 NY2d 428, 437 [1985]).


text:
    [869 NE2d 636, 838 NYS2d 460]
    State of New York et al., Appellants, v Philip Morris Incorporated et al., Defendants. Commonwealth Brands, Inc., et al., Nonparty Respondents.
    Argued May 1, 2007;
    decided June 7, 2007

      POINTS OF COUNSEL

      Andrew M. Cuomo, Attorney General, New York City (Richard Dearing, Barbara D. Underwood and Daniel Smirlock of counsel), for appellants.
    I. The Master Settlement Agreement charges courts, not arbitrators, with determining whether a state has diligently enforced its escrow statute. (Credit Suisse First Boston Corp. v Pitofsky, 4 NY3d 149; Matter of R. H. Macy & Co. [National Sleep Prods.], 39 NY2d 268; PNE Media v Cistrone, 294 AD2d 143; Matter of Smith Barney Shear son v Sacharow, 91 NY2d 39; Matter of Weinrott [Carp], 32 NY2d 190; Matter of Solkav Solartechnik, G.m.b.H. [Besicorp Group], 91 NY2d 482; Matter of Primex Intl. Corp. v Wal-Mart Stores, 89 NY2d 594; Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358; McDonnell Douglas Fin. Corp. v Pennsylvania Power & Light Co., 858 F2d 825; Gangel v DeGroot, 41 NY2d 840.) II. The Independent Auditor’s failure to apply a Non-Participating Manufacturer adjustment on a provisional basis in March 2004 is not arbitrable. (Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39.)

      Kirkland & Ellis LLP, Chicago, Illinois and New York City CStephen R. Patton, Peter A. Bellacosa and Douglas G. Smith of counsel), DLA Piper Rudnick Gray Cary US LLP, New York City (Alexander Shaknes of counsel), and Weil, Goshal & Manges LLP (Penny P. Reid of counsel) for Philip Morris Incorporated and others, defendants.
    I. The Appellate Division correctly held that the plain language of the Master Settlement Agreement requires that the present dispute be arbitrated. (Collins & Aikman Prods. Co. v Building Sys., Inc., 58 F3d 16; Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358; Pearl St. Dev. Corp. v Conduit & Found. Corp., 41 NY2d 167; Fleet Tire Serv. of N. Little Rock v Oliver Rubber, 118 F3d 619; Matter of Potoker [Brooklyn Eagle], 286 App Div 733; CBA Indus, v Circulation Mgt., 179 AD2d 615; Ross Bros. Constr. Co., Inc. v International Steel Servs., Inc., 283 F3d 867; Coregis Ins. Co. v American Health Found., Inc., 241 F3d 123; CD Partners, LLC v Grizzle, 424 F3d 795; Vermont Pure Holdings, Ltd. v Descartes Sys. Group, Inc., 140 F Supp 2d 331.) II. The Appellate Division correctly held that the structure of the Master Settlement Agreement’s payment provisions compels arbitration. III. The State of New York does not even purport to overcome the well-settled presumption in favor of arbitration. (Oldroyd v Elmira Sav. Bank, FSB, 134 F3d 72; Mitsubishi Motors Corp. v Soler Chrysler-Plymouth, Inc., 473 US 614; AT&T Technologies, Inc. v Communications Workers, 475 US 643; Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39; Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91; Lynch v United States, 292 US 571; C & L Enterprises, Inc. v Citizen Band Potawatomi Indian Tribe of Okla., 532 US 411; Chevron U.S.A. Inc. v Consolidated Edison Co. of N.Y., Inc., 872 F2d 534; Ivax Corp. v B. Braun of Am., Inc., 286 F3d 1309; International Bhd. of Elec. Workers, Local 2188 v Western Elec. Co., Inc., 661 F2d 514.)

      Howrey LLP, Washington, D.C. (Robert J. Brookhiser and Elizabeth B. McCallum of counsel), and Leader & Berkon LLP, New York City {Joseph G. Coleo and Joshua K. Leader of counsel), for nonparty respondents.
    I. The First Department correctly held that the Master Settlement Agreement’s plain language requires arbitration. (Fleet Tire Serv. of N. Little Rock v Oliver Rubber Co., 118 F3d 619; Matter of Potoker [Brooklyn Eagle], 286 App Div 733, 2 NY2d 553; Ross Bros. Constr. Co., Inc. v International Steel Servs., Inc., 283 F3d 867; Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358; Pearl St. Dev. Corp. v Conduit & Found. Corp., 41 NY2d 167; Matter of Trump [Carmel Fifth], 303 AD2d 287; CBA Indus. v Circulation Mgt., 179 AD2d 615; Collins & Aikman Prods. Co. v Building Sys., Inc., 58 F3d 16; Matter of Manhattan Pizza Hut v New York State Human Rights Appeal Bd., 51 NY2d 506; Green v City of New York, 465 F3d 65.) II. The First Department correctly rejected the State of New York’s request that it rewrite the arbitration provision to insert limitations and exceptions it does not contain. (R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29; Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173; W.W.W. Assoc. v Giancontieri, 77 NY2d 157; Ruttenberg v Davidge Data Sys. Corp., 215 AD2d 191; New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645; In re Mansion House Ctr. S. Redevelopment Co., 661 F2d 724; Matter of Shondel J. v Mark D., 7 NY3d 320; People v Kohl, 72 NY2d 191; McDonnell Douglas Fin. Corp. v Pennsylvania Power & Light Co., 858 F2d 825; Fit Tech, Inc. v Bally Total Fitness Holding Corp., 374 F3d 1.) III. The First Department correctly held that the Master Settlement Agreement’s payment structure compels arbitration. (Mat

      ter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621; Gaynor v Rockefeller, 15 NY2d 120; College Savings Bank v Florida Prepaid Postsecondary Ed. Expense Bd., 527 US 666; Pennhurst State School & Hospital v Halderman, 465 US 89; Matter of Sprinzen [Nomberg], 46 NY2d 623; Bingham v New York City Tr. Auth., 99 NY2d 355; Flagg v Nichols, 307 NY 96; Maloney v Hearst Hotels Corp., 274 NY 106.) IV. If there were any question as to arbitrability, it would be resolved by the rule that doubts must be resolved in favor of arbitration. (Collins & Aikman Prods. Co. v Building Sys., Inc., 58 F3d 16; Mitsubishi Motors Corp. v Soler Chrysler-Plymouth, Inc., 473 US 614; Moses H. Cone Memorial Hospital v Mercury Constr. Corp., 460 US 1; Volt Information Sciences, Inc. v Board of Trustees of Leland Stanford Junior Univ., 489 US 468; AT&T Technologies, Inc. v Communications Workers, 475 US 643; WorldCrisa Corp. v Armstrong, 129 F3d 71; CPR [USA] Inc. v Spray, 187 F3d 245; McDonnell Douglas Fin. Corp. v Pennsylvania Power & Light Co., 858 F2d 825; Chevron U.S.A. Inc. v Consolidated Edison Co. of N.Y., Inc., 872 F2d 534; Ivax Corp. v B. Braun of Am., Inc., 286 F3d 1309.) V. The First Department correctly held that disputes relating to the Non-Participating Manufacturer adjustment must be arbitrated. (Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173.)
   OPINION OF THE COURT

Pigott, J.

In 1998, the Attorneys General of 46 states (including New York) and five island territories and the Corporation Counsel of the District of Columbia signed a Master Settlement Agreement (MSA) with counsel for the largest tobacco manufacturers in the United States. The MSA was approved, as to New York State, by Supreme Court. The claims brought against the tobacco manufacturers included wrongful marketing and advertising of cigarettes and other tobacco products. Various states sought damages based on the costs of treating smoking-related illnesses. In exchange for a release of liability, the tobacco manufacturers agreed to make annual payments, to be allocated among the Settling States. They also agreed to extensive marketing and advertising restrictions. The Original Participating Manufacturers, as they are known, were later joined by more than 40 smaller tobacco companies, referred to as the Subsequent Participating Manufacturers (SPMs), including movants Commonwealth Brands, Inc. (Commonwealth), King Maker Marketing, Inc. (King Maker), and Sherman 1400 Broadway N.Y.C., Inc. (Sherman). Lengthy and careful negotiations preceded execution of the MSA.

Not all U.S. tobacco manufacturers have joined the MSA. In order to neutralize cost disadvantages suffered by the Participating Manufacturers (PMs) relative to Non-Participating Manufacturers (NPMs), the MSA provides the Settling States with a strong incentive to enact statutes requiring NPMs to make annual payments toward the costs of treating smoking-related illnesses equivalent to those made by the PMs. The MSA sets out a Model Statute, which, if appropriately enacted, “shall constitute a Qualifying Statute.” If a Settling State fails to enact, or does not diligently enforce, a Qualifying Statute, PM payments to that state may be subject to the Non-Participating Manufacturer adjustment (NPM adjustment).

In brief, NPM adjustment can be applied to reduce PM payments to a Settling State if (1) PMs collectively lost market share to NPMs in the preceding year and (2) disadvantages resulting from the MSA were a “significant factor” contributing to that loss. But payment to a Settling State is not subject to the NPM adjustment

“if such Settling State continuously had a Qualifying Statute ... in full force and effect during the entire calendar year immediately preceding the year in which the payment in question is due, and diligently enforced the provisions of such statute during such entire calendar year.”

Settling States that have diligently enforced their respective Qualifying Statutes are not subject to the NPM adjustment; instead, the adjustment is to be reallocated pro rata among Settling States that are subject to the NPM adjustment, reducing the payments they receive. A decision regarding one Settling State’s enforcement of its Qualifying Statute could therefore potentially affect the calculation of amounts due to all other Settling States.

The MSA provides that

“an Independent Auditor shall calculate and determine the amount of all payments owed pursuant to [the MSA], the adjustments, reductions and offsets thereto (and all resulting carry-forwards, if any), the allocation of such payments, adjustments, reductions, offsets and carry-forwards among the Participating Manufacturers and among the Settling States, and shall perform all other calculations in connection with the foregoing.”

The Independent Auditor “shall be a major, nationally recognized, certified public accounting firm.” PricewaterhouseCoopers LLP is currently the Independent Auditor.

The Independent Auditor is responsible for determining whether or not PMs collectively lost market share to NPMs. If there is such a loss, “a nationally recognized firm of economic consultants (the ‘Firm’)” will determine whether disadvantages resulting from the MSA were a significant factor contributing to the loss; its determination is “final and non-appealable.” To allow the Independent Auditor to reach a determination about the NPM adjustment before the Firm makes its decision regarding the significant factor condition, the MSA authorizes the Independent Auditor, when information necessary for a determination is missing and not readily available to a party, to “employ an assumption as to the missing information producing the minimum amount that is likely to be due with respect to the payment in question.”

The courts that approved the MSA retain jurisdiction to decide disputes about it, as to their respective Settling States, except as otherwise provided. At issue in this case is one of the exceptions, an arbitration provision governing the resolution of disputes about the Independent Auditor’s calculations and determinations:

“Any dispute, controversy or claim arising out of or relating to calculations performed by, or any determinations made by, the Independent Auditor (including, without limitation, any dispute concerning the operation or application of any of the adjustments, reductions, offsets, carry-forwards and allocations described in subsection IX (j) or subsection XI (i)) shall be submitted to binding arbitration before a panel of three neutral arbitrators, each of whom shall be a former Article III federal judge. Each of the two sides to the dispute shall select one arbitrator. The two arbitrators so selected shall select the third arbitrator. The arbitration shall be governed by the United States Federal Arbitration Act.”

In March 2004, the Independent Auditor issued preliminary and final notices of calculation for payments due from the PMs for 2003. It determined that the PMs had suffered a market share loss and, employing the “missing information” provision, assumed that disadvantages brought on by the MSA were a significant factor contributing to this loss. But the Independent Auditor declined to apply the NPM adjustment, rejecting a request from the movants to do so. Citing information provided by the National Association of Attorneys General that all Settling States had enacted Model Statutes represented to be “in full force and effect,” the Independent Auditor concluded that “no possible NPM adjustment is allocated to PMs.”

Three SPMs — Commonwealth, King Maker and Sherman— moved in Supreme Court to compel arbitration. Movants disputed the Independent Auditor’s refusal to apply the NPM adjustment, asserting that it had no right to presume diligent enforcement of Qualifying Statutes. Supreme Court denied the motion. The movants appealed. The Appellate Division reversed and ordered the motion to be granted (30 AD3d 26 [2006]). We granted the State leave to appeal, and now affirm.

The plain language of the MSA compels arbitration. The parties to the MSA agreed that “[a]ny dispute, controversy or claim arising out of or relating to calculations performed by, or any determinations made by, the Independent Auditor” (emphasis added) will be subject to arbitration. By using the expansive words “any” and “relating to,” the MSA makes explicit that all claims that have a connection with the Independent Auditor’s calculations and determinations are arbitrable.

We discern no intent to limit arbitration to review of calculations performed or decisions reached by the Independent Auditor. Therefore, the State’s contention that the Independent Auditor did not reach a “determination” about diligent enforcement of Qualifying Statutes when it concluded that no NPM adjustment was possible is not pertinent. The movants’ assertions — that the Independent Auditor should not have presumed that New York diligently enforced its Qualifying Statute and therefore wrongly declined to allocate the NPM adjustment— constitute claims “relating to” the Independent Auditor’s calculations and determinations. The arbitration provision therefore “expressly and unequivocally encompasses the subject matter of the particular dispute” (Bowmer v Bowmer, 50 NY2d 288, 293-294 [1980]).

We find especially compelling the parenthetical clause in the arbitration provision giving examples of arbitrable disputes: “including, without limitation, any dispute concerning the operation or application of any of the adjustments, reductions, offsets, carry-forwards and allocations described in subsection IX (j) or subsection XI (i)” (emphasis added). The language is expansive and the examples are telling. MSA subsection IX (j) gives the “Order of Application of Allocations, Offsets, Reductions and Adjustments” by the Independent Auditor, and among the listed adjustments is the NPM adjustment.

It is true that the signatories did not intend to refer all disputes about the MSA to arbitration. The arbitration clause is limited to disputes connected with the Independent Auditor’s calculations and determinations while at the same time it is expansive within that boundary. Such an arbitration clause is misleadingly called broad. Nevertheless, the movants’ claims fall within its purview.

Our plain language interpretation of the arbitration provision is consistent with the use of arbitration “as a means of conserving the time and resources of the courts and the contracting parties” (Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 49 [1997], quoting Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91, 95 [1975]). We note that the arbitration provision occurs in a settlement agreement, and that it is the nature of a settlement to eliminate unpredictable litigation. In this regard, we agree with the Appellate Division that there is fairness to all parties in a “mechanism of submitting disputes involving the decisions of the Independent Auditor to a neutral panel of competent arbitrators, who are guided by one clearly articulated set of rules that apply universally in a process where all parties can fully and effectively participate” (30 AD3d at 32-33).

We therefore conclude that the questions whether New York enacted and diligently enforced a Qualifying Statute and whether it was correctly spared, the NPM adjustment are arbitrable.

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

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

Order affirmed, with costs.

      . New York enacted Public Health Law article 13-G.

      . The aggregate market share of the PMs is compared with their aggregate market share for the base year 1997. If the aggregate market share has decreased by more than 2% there is a “Market Share Loss.”

      . In March 2006, the Firm determined that disadvantages resulting from the MSA were a significant contributory factor.

        . All but one of the MSA and appellate courts deciding this issue agree that the MSA compels arbitration. The sole exception is State of North Dakota v Philip Morris, Incorporated [et al.] (ND Dist Ct, County of Cass, July 18, 2006, File No. 09-98-C-03778). The highest courts of Connecticut and Massachusetts have expressly endorsed the Appellate Division’s reasoning (see State v Philip Morris, Inc., 279 Conn 785, 905 A2d 42 [2006]; Commonwealth v Philip Morris Inc., 448 Mass 836, 864 NE2d 505 [2007]).


author: Smith, J.

text:
    [870 NE2d 124, 838 NYS2d 806]
    Manufacturer’s & Traders Trust Company, Named in the Relevant Escrow Agreements as Manufacturer’s & Traders Bank, Plaintiff, v Reliance Insurance Company et al., Defendants, O’Brien & Gere Technical Services, Inc., et al., Appellants, and Fru-Con/Fluor Daniel Joint Venture, Respondent.
    Argued March 28, 2007;
    decided May 3, 2007

      POINTS OF COUNSEL

      Harter Secrest & Emery LLP, Rochester (Richard E. Alexander and A. Paul Britton of counsel), for Gives Corporation and another, appellants.
    I. A court has no discretion to award “interest” against a party that committed no tort and breached no contract, and against which no damage award has been made. (De Long Corp. v Morrison-Knudsen Co., 14 NY2d 346; Keating v Astor Theatre Corp., 277 App Div 52; Spodek v Park Prop. Dev. Assoc., 96 NY2d 577; Amoco Transp. Co. v Dietze, Inc., 582 F Supp 804; Reliable Mar. Boiler Repair, Inc. v Mastan Co., 325 F Supp 58.) II. Awards of “interest” in interpleader actions are governed by CPLR 1006 (f); the lower court had no discretion to make an “interest” award against an unsuccessful interpleader claimant. (Matter of Janes, 90 NY2d 41; Matter of Aaron J., 80 NY2d 402; People v Mobil Oil Corp., 48 NY2d 192; People v Lawrence, 64 NY2d 200.) III. Fru-Con/Fluor Daniel Joint Venture was not entitled to “interest” simply because it was a prevailing party; the ruling below will discourage legitimate access to the courts. (Chapel v Mitchell, 84 NY2d 345; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12.) IV. Alternatively, Gives Corporation should not in any event be jointly and severally liable for all the interest represented in the judgment. (Matter of Seagroatt Floral Co. [Riccardi], 78 NY2d 439; Ravo v Rogatnick, 70 NY2d 305; Said v Assaad, 289 AD2d 924; Martinetti v Town of New Hartford Police Dept., 307 AD2d 735; Larson v Albany Med. Ctr., 252 AD2d 936; Brawdy v National Grange Mut. Ins. Co., 207 AD2d 1019; Matter of Przydatek v New York State Off. of Children & Family Servs., 13 AD3d 1102.)

      Frank A. Bersani, Jr., Syracuse, for O’Brien & Gere Technical Services, Inc., appellant.
    I. The joint venture has failed to present any statutory basis for an extra-res award of interest in an interpleader action. (Keating v Astor Theatre Corp., 277 App Div 52; Bankers Trust Co. v Hogan, 196 AD2d 469.) II. The Supreme Court was in error to hold O’Brien & Gere Technical Services, Inc. (OBG) liable for interest because OBG did not breach its contract with Fru-Con/Fluor Daniel Joint Venture, nor did it interfere with the property of the Joint Venture. (Matter of Bello v Roswell Park Cancer Inst, 5 NY3d 170; Matter of Meloni v Goord, 267 AD2d 977; Spodek v Park Prop. Dev. Assoc., 96 NY2d 577.)

      Gresens & Gillen LLP, Buffalo {Patricia Gillen and James W. Gresens of counsel), for respondent.
    As to: Gives Corporation and Gives Steel Company, Mid-South Division. I. Legal issues not raised before the trial court are not preserved for appeal before this Court and should not be considered. (Bingham v New York City Tr. Auth., 99 NY2d 355; Telaro v Telaro, 25 NY2d 433; Freytag v Commissioner, 501 US 868.) II. Supreme Court providently exercised its discretion under CPLR 5001 (a) when it awarded interest to compensate the Fru-Con/Fluor Daniel Joint Venture for the loss of its funds for over four years due to the actions of O’Brien & Gere Technical Services, Inc. and Gives Corporation and Gives Steel Company, Mid-South Division. (Hynes v Iadarola, 221 AD2d 131; Zies v New York Life Ins. Co., 237 App Div 367; Perlman v East Annadale Beach Corp., 233 App Div 599; Dagood Holding Corp. v Rosenbluth, 231 App Div 470; Amoco Transp. Co. v Dietze, Inc., 582 F Supp 804; Septembertide Publ., B.V. v Stein & Day, Inc., 884 F2d 675; Selinger v Selinger, 250 AD2d 752; Burrows v Burrows, 270 AD2d 871; Matter of Dow, 55 AD2d 323.) III. Interest was also properly awarded under CPLR 5001 (a) because Gives Corporation and Gives Steel Company, Mid-South Division interfered with the return of Fru-Con/Fluor Daniel Joint Venture’s funds. (Craig Test Boring Co., Inc. v Saudi Arabian Airlines Corp., 138 F Supp 2d 553; Spodek v Park Prop. Dev. Assoc., 279 AD2d 467; Spector v Mermelstein, 485 F2d 474; Arigo v Abbott & Cobb, 86 AD2d 958; De Long Corp. v Morrison-Knudsen Co., 14 NY2d 346; Loeb v Teitelbaum, 112 Misc 2d 1039; Flamm v Noble, 296 NY 262; Nu-Life Constr. Corp. v Board of Educ. of City of N.Y., 789 F Supp 103; Hunt v Hunt, 13 AD3d 1041; Eighteen Holding Corp. v Drizin, 268 AD2d 371.) IV. The award of interest is not governed by, and does not offend or vitiate the purpose of, CPLR 1006. (Matter of Burger King v State Tax Commn., 51 NY2d 614; Matter of Tyson v Roswell Park Cancer Inst. Corp., 4 Misc 3d 556; People v Sagesse, 13 Misc 3d 435; People v Lawrence, 64 NY2d 200; Schieffelin v Craig, 183 App Div 515.) As to: O’Brien & Gere Technical Services, Inc. I. Supreme Court providently exercised its discretion under CPLR 5001 (a) when it awarded interest to compensate Fru-Con/Fluor Daniel Joint Venture for the loss of its funds for over four years due to the actions of O’Brien & Gere Technical Services, Inc. and Gives Corporation and Gives Steel Company, Mid-South Division. (Hynes v Iadarola, 221 AD2d 131; Clark v Mosher, 107 NY 118; Zies v New York Life Ins. Co., 237 App Div 367; Amoco Transp. Co. v Dietze, Inc., 582 F Supp 804; Septembertide Publ., B.V. v Stein & Day, Inc., 884 F2d 675; Perlman v East Annadale Beach Corp., 233 App Div 599; Dagood Holding Corp. v Rosenbluth, 231 App Div 470; Selinger v Selinger, 250 AD2d 752; Burrows v Burrows, 270 AD2d 871; Matter of Dow, 55 AD2d 323.) II. Supreme Court was well within its discretion to apply the rate of 9% for its award of interest under CPLR 5001 (a). (Rodriguez v New York City Hous. Auth., 91 NY2d 76; City of Buffalo v Clement Co., 28 NY2d 241.) III. Interest was also properly awarded under CPLR 5001 (a) because O’Brien & Gere Technical Services, Inc. breached the escrow agreement and interfered with the return of Fru-Con/Fluor Daniel Joint Venture’s funds. (De Long Corp. v Morrison-Knudsen Co., 14 NY2d 346; Spodek v Park Prop. Dev. Assoc., 279 AD2d 467; Loeb v Teitelbaum, 112 Misc 2d 1039; Flamm v Noble, 296 NY 262; Spector v Mermelstein, 485 F2d 474; Butler v Brown, 180 AD2d 406; Arigo v Abbott & Cobb, 86 AD2d 958; Spodek v Park Prop. Dev. Assoc., 96 NY2d 577; Nu-Life Constr. Corp. v Board of Educ. of City of N.Y., 789 F Supp 103; Hunt v Hunt, 13 AD3d 1041.) IV. Legal issues not raised before the trial court are not preserved for appeal before this Court and should not be considered. (Bingham v New York City Tr. Auth., 99 NY2d 355; Telaro v Telaro, 25 NY2d 433.) V. O’Brien & Gere Technical Services, Inc. and Gives Corporation and Gives Steel Company, Mid-South Division consented to personal jurisdiction as evidenced by their failure to plead a defense based on lack of personal jurisdiction, their failure to object to personal jurisdiction during the previous seven years of litigation, their affirmative actions in asserting cross claims in the underlying action, and their failure to preserve this issue for appeal. (Ohio Sav. Bank v Munsey, 34 AD3d 659; National Loan Invs., L.P. v Piscitello, 21 AD3d 537; Bingham v New York City Tr. Auth., 99 NY2d 355; Oram v Capone, 206 AD2d 839.)
   OPINION OF THE COURT

Smith, J.

We hold that CPLR 5001 (a) does not authorize an award of interest against unsuccessful claimants in an interpleader action.

Facts and Procedural History

This case arises out of a contract to build a paper plant. The general contractor, Fru-Con/Fluor Daniel Joint Venture (the Joint Venture), awarded a subcontract to O’Brien & Gere Technical Services, Inc. (O’Brien) for the construction of several buildings that were to be part of the plant. O’Brien in turn awarded a number of subcontracts, including one for steel fabrication and erection to Gives Corporation. Problems developed, payments were delayed, and several of O’Brien’s subcontractors threatened to stop or slow their work if they were not paid.

To keep the project going, the Joint Venture and O’Brien agreed in late March 1999 that the Joint Venture would deposit approximately $5.3 million with an escrow agent, Manufacturer’s & Traders Trust Company, until June 15, 1999. The plan was that, during that 2 1/2-month interval, O’Brien would try to negotiate settlements with its subcontractors, and the escrowed money would be used to pay subcontractors in accordance with settlement agreements. Any balance left over on June 15, 1999 was to be returned to the Joint Venture.

By June 15, payments had reduced the escrow fund to some $2.4 million, but it took more than four years for the Joint Venture to recover that balance. Before June 15, Cives’s lawyer wrote to the escrow agent, saying that O’Brien owed Gives approximately $3.4 million and requesting “that there be no further disbursement of any escrowed funds” pending a resolution of Cives’s claim. As a result, the escrow agent began this interpleader action, naming the Joint Venture, O’Brien, Gives and others as possible claimants to the fund. A few weeks later, Supreme Court discharged the escrow agent and ordered it to deposit the escrowed money with the court clerk “where said funds shall remain until further Order of the Court.”

The pleadings in the interpleader action are not in the record before us, but it is clear that O’Brien, Gives and others asserted claims to the fund at various points, and that the resolution of them was time-consuming. Finally, in March 2003, the Appellate Division ruled that the fund should be returned to the Joint Venture. After some further skirmishing, the clerk paid the Joint Venture the money in late 2003 and early 2004. For reasons that no party explains, the payments from the clerk to the Joint Venture included only a nominal amount of interest.

The Joint Venture then moved for entry of judgment against O’Brien and Gives in an amount equal to interest at the statutory rate of nine percent (less the small amount of interest paid by the clerk) for the time during which the funds had sat in court. Supreme Court granted the motion, and the Appellate Division affirmed. We granted leave to appeal, and now reverse.

Discussion

Interest awards in New York are “purely a creature of statute” (Matter of Bello v Roswell Park Cancer Inst., 5 NY3d 170, 172 [2005]). The statute governing interpleader, CPLR 1006, provides for an award of interest against a stakeholder, up to the time of discharge (CPLR 1006 [f]), but not against unsuccessful claimants. Thus the interest award here must be authorized, if at all, by the general interest statute, CPLR 5001 (a), which provides:

“Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court’s discretion.”

The Joint Venture argues that interpleader actions are “of an equitable nature,” and that therefore Supreme Court had discretion to award interest against O’Brien and Gives. It also argues that the award of interest was correct because O’Brien was guilty of “breach of performance of a contract” (the escrow agreement) and because the conduct of O’Brien and Gives in litigating the interpleader case constituted “an act or omission depriving or otherwise interfering with . . . possession or enjoyment of’ property. We reject the Joint Venture’s arguments.

Interpleader actions are indeed equitable, and substantial authority supports the view that CPLR 5001 (a) permits interest awards in all equitable actions, not just those based on breach of contract or interference with property (Weinstein-Korn-Miller, NY Civ Prac ¶ 5001.06, at 50-20; Selinger v Selinger, 250 AD2d 752 [2d Dept 1998]; Matter of Dow, 55 AD2d 323 [4th Dept 1977]). Still, the discretion given by the statute does not stretch as far as the Joint Venture claims. CPLR 5001 (a) authorizes interest “upon a sum awarded” — implying that the interest must be paid by the party against whom the sum was awarded. There was no “sum awarded” against O’Brien or Gives here, and thus no predicate for an award of interest against them.

The purpose of interest is to require a person who owes money to pay compensation for the advantage received from the use of that money over a period of time. No such justification for an interest award exists here: during the time at issue, the money was held by the clerk of the court, and O’Brien and Gives no more had the use of it than the Joint Venture did. To award interest against O’Brien and Gives would be to penalize them for a delay that brought them no benefit. But, as we explained in Love v State of New York (78 NY2d 540, 544 [1991]):

“[I]nterest is not a penalty. Rather, it is simply the cost of having the use of another person’s money for a specified period .... It is intended to indemnify successful plaintiffs ‘for the nonpayment of what is due to them’ (Trimboli v Scarpaci Funeral Home, [37 AD2d 386,] at 389), and is not meant to punish defendants for delaying the final resolution of the litigation.”

The Joint Venture’s arguments that interest is authorized by the language in CPLR 5001 (a) referring to “breach of performance of a contract” and to “possession or enjoyment of’ property are subject to the same objections: there is no “sum awarded” against O’Brien and Gives, and no benefit to them that would justify requiring them to pay interest. There is also a more fundamental objection: O’Brien and Gives have not been found to have breached any contract or to have interfered unlawfully with the possession or enjoyment of any property.

The Appellate Division did find, in an earlier appeal, that O’Brien had not performed the conditions that would have entitled it to payment under the escrow agreement, but no claim was asserted, and no judgment awarded, against O’Brien for breach of contract. Nor was there a judgment, or any basis for a judgment, against O’Brien or Gives for interference with the Joint Venture’s “possession or enjoyment” of property. All that O’Brien and Gives did to delay payment of the escrow fund to the Joint Venture was litigate their claims to that fund. No court found that O’Brien’s and Gives’s claims were frivolous, that their conduct in the litigation was vexatious, or that they acted solely to cause delay. Since they were not found to have committed any “act or omission” that can be a basis for liability, the “possession or enjoyment” clause of CPLR 5001 (a) does not apply.

There is no doubt that the Joint Venture suffered a hardship in being deprived of the money in escrow for four years, with only meager compensation for the delay. This hardship, however, was the result not of any misconduct by O’Brien or Gives, but of the inexplicable failure by all concerned to arrange for the payment of a meaningful interest rate on the escrowed money. There is no apparent reason why the money could not have been put into an interest bearing account, with interest to benefit the successful claimant (see CPLR 2601 [d]; cf. Reliable Mar. Boiler Repair, Inc. v Mastan Co., 325 F Supp 58, 64 [SD NY 1971]). But the Joint Venture sought no such relief when the money was deposited with the clerk in 1999, and it cannot now complain that it was deprived of interest.

Accordingly, the order of the Appellate Division should be reversed with costs, and the motion of the Joint Venture for an award of interest against O’Brien and Gives should be denied.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read and Jones concur; Judge Pigott taking no part.

Order reversed, etc.