text:
    [829 NE2d 1201, 797 NYS2d 33]
    Roger Johnson et al., Respondents, v Daniel A. Ward, Appellant.
    Argued March 29, 2005;
    decided May 5, 2005

      POINTS OF COUNSEL

      Stockschlaeder, McDonald & Sales, P.C., New York City (Richard T. Sules and Gail S. Karan of counsel), for appellant.
    I. The Appellate Division, First Department erred in finding that CPLR 302 (a) (1), New York’s long-arm jurisdiction statute, applied against defendant who was no longer a New York resident on the date plaintiff commenced the within action which arose out of an out-of-state automobile accident. More specifically, the Court erred in holding that possession of a New York State driver’s license and car registration constitutes the “transaction] of business” sufficient to confer in personam jurisdiction. (McGowan v Smith, 52 NY2d 268; Talbot v Johnson Newspaper Corp., 71 NY2d 827; George Reiner & Co. v Schwartz, 41 NY2d 648; Roseland v National Transp. Co., 52 Misc 2d 921; Shuba v Greendonner, 271 NY 189; American Motorists Ins. Co. v Snyder, 63 Misc 2d 690.) II. The Appellate Division, First Department erred in relying upon cases which do not apply to the facts of the within case in that they involve business transactions with a commercial, contractual or employment aspect. (Lancaster v Colonial Motor Frgt. Line, 177 AD2d 152; McLenithan v Bennington Community Health Plan, 223 AD2d 777, 88 NY2d 1017; Gaboury v Central Vt. Ry. Co., 250 NY 233; Kreutter v McFadden Oil Corp., 71 NY2d 460; George Reiner & Co. v Schwartz, 41 NY2d 648; Talbot v Johnson Newspaper Corp., 71 NY2d 827; McGowan v Smith, 52 NY2d 268.) III. The lower court correctly found that defendant-appellant was not subject to personal jurisdiction pursuant to CPLR 302, and properly granted defendant-appellant’s motion dismissing plaintiffs-respondents’ complaint. (Keane v Kamin, 94 NY2d 263; Purification v Kindler, 253 AD2d 869, 92 NY2d 818; Agra Chem. Distrib. Co., Inc. v Marion Labs., Inc., 523 F Supp 699.)

      Pops & Associates, New York City (Daniel W. Coffey and Paul R. Pops of counsel), for respondents.
    I. The Appellate Division, First Department held correctly that defendant-appellant was subject to personal jurisdiction pursuant to CPLR 302 (a) (1). (Kreutter v McFadden Oil Corp., 71 NY2d 460; LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210; Parke-Bernet Galleries v Franklyn, 26 NY2d 13; Murdock v Arenson Intl. USA, 157 AD2d 110;
      International Shoe Co. v Washington, 326 US 310; Citibank v Intercontinental Bank, 169 Misc 2d 342; World-Wide Volkswagen Corp. v Woodson, 444 US 286; Comprehensive Foot Care Group v Lincoln Natl. Life, 135 Misc 2d 862; Hanson v Denckla, 357 US 235; Lancaster v Colonial Motor Frgt. Line, 177 AD2d 152.) II. The State of New York retains personal jurisdiction over defendant-appellant through CPLR 302 (a) (1) and the Appellate Division, First Department’s decision is supported by Vehicle and Traffic Law § 388 (1). (Ames v Cross, 177 AD2d 771; Aetna Cas. & Sur. Co. v Brice, 72 AD2d 927; Farber v Smolack, 20 NY2d 198.)
   OPINION OF THE COURT

Graffeo, J.

In this case, we are asked whether long-arm jurisdiction exists over a nonresident holding a New York driver’s license and car registration for a tort claim arising from an out-of-state motor vehicle accident. We conclude that personal jurisdiction does not lie under CPLR 302 (a) (1) because there is an insufficient nexus between plaintiffs’ personal injury action and any New York transactions.

On October 12, 1997, plaintiffs Roger Johnson and Monique White allegedly sustained injuries when their vehicle was struck from behind by a car driven by defendant Daniel Ward. Although the accident occurred in New Jersey, all three individuals were New York residents. At that time, defendant possessed a New York driver’s license and had registered his vehicle in New York. In December 1997, defendant moved to New Jersey and in 1998 he surrendered his New York license in favor of a New Jersey license.

After these events, plaintiffs commenced this negligence action against defendant in Supreme Court, New York County, in October 2000. Defendant moved to dismiss the complaint for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8). Supreme Court granted the motion and dismissed the complaint, finding no basis for long-arm jurisdiction. Upon reargument, the court adhered to its original determination.

The Appellate Division, with one Justice dissenting, reversed and reinstated the complaint. The majority reasoned that defendant’s New York license and vehicle registration satisfied the “transacting business” requirement of CPLR 302 (a) (1) and that a substantial nexus existed between the cause of action and defendant’s New York activities inasmuch as plaintiffs’ claim “arose over the operation by a driver licensed in New York of a vehicle registered in New York” (6 AD3d 286, 287 [1st Dept 2004]). In contrast, the dissent determined that defendant’s possession of a New York license and vehicle registration did not constitute a transaction of business within the meaning of CPLR 302 (a) (1) because the statute contemplates only commercial or financial activities. Alternatively, the dissent concluded that the New York license and vehicle registration were not “in any way related to this out-of-state accident so as to create the necessary nexus to invoke long-arm jurisdiction” {id. at 292). The Appellate Division granted leave to this Court, certifying the following question: “Was the order of this Court, which reversed the order of the Supreme Court, properly made?” We answer in the negative and therefore reverse.

CPLR 302 provides in part:

“(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent:
“1. transacts any business within the state or contracts anywhere to supply goods or services in the state.”

As relevant in this case, long-arm jurisdiction over a nondomiciliary exists where (i) a defendant transacted business within the state and (ii) the cause of action arose from that transaction of business. If either prong of the statute is not met, jurisdiction cannot be conferred under CPLR 302 (a) (1).

We have recognized that a “substantial relationship” must be established between a defendant’s transactions in New York and a plaintiffs cause of action in order to satisfy the nexus requirement of the statute (Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]). Consequently, we have upheld long-arm jurisdiction over a nondomiciliary where the claim had the requisite nexus to an in-state transaction (see e.g. George Reiner & Co. v Schwartz, 41 NY2d 648, 653 [1977] [concluding there was jurisdiction over a Massachusetts resident for breach of an employment contract entered into in New York]; Singer v Walker, 15 NY2d 443, 467 [1965] [sustaining jurisdiction because plaintiffs personal injury claim resulting from the use of a defective hammer arose from “the purposeful activities engaged in by [defendant] in this State in connection with the sale of its products in the New York market”], cert denied sub nom. Estwing Mfg. Co. v Singer, 382 US 905 [1965]). On the other hand, we have ruled that jurisdiction is not justified where the relationship between the claim and transaction is too attenuated (see e.g. Talbot v Johnson Newspaper Corp., 71 NY2d 827, 829 [1988] [holding that the nexus between a coach’s defamation action and a former student’s pursuit of a college degree in New York was insufficient to support jurisdiction]).

Here, we conclude that plaintiffs have failed to establish a sufficient nexus between the purported transactions of business in New York and the negligence claim. Plaintiffs’ cause of action arose out of defendant’s allegedly negligent driving in New Jersey, not from the issuance of a New York driver’s license or vehicle registration. The relationship between the negligence claim and defendant’s possession of a New York license and registration at the time of the accident is too insubstantial to warrant a New York court’s exercise of personal jurisdiction over defendant. The negligent driver could have had a license from any state, or no license—that defendant had a New York license and registration is merely coincidental. As such, plaintiffs cannot rely on CPLR 302 (a) (1) to establish long-arm jurisdiction based on the facts of this case.

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant’s motion to dismiss the complaint granted and the certified question answered in the negative.

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

Order reversed, etc.

       In light of this determination, it is unnecessary for us to decide whether defendant’s possession of a New York driver’s license and vehicle registration qualifies as a transaction of “business” within the meaning of CPLR 302 (a) (1).


source: Caselaw Access Project

author: G.B. Smith, J. Rosenblatt, J. (dissenting in part).

license: Public Domain

text:
    [829 NE2d 1192, 797 NYS2d 24]
    The People of the State of New York, Respondent, v Stephen G. Schulz, Appellant.
    Argued March 30, 2005;
    decided May 5, 2005

      POINTS OF COUNSEL

      William E. Hellerstein, Brooklyn, Marjorie M. Smith and Daniel S. Medwed for appellant.
    I. Appellant’s federal and state constitutional rights to present a defense were violated by the trial court’s refusal to allow him to introduce evidence that another person may have been the actual perpetrator of the El Classico robbery. (People v Primo, 96 NY2d 351; Taylor v Illinois, 484 US 400; Pennsylvania v Ritchie, 480 US 39; Chambers v Mississippi, 410 US 284; United States v Robinson, 544 F2d 110; People v Crimmins, 38 NY2d 407.) II. The evidence against appellant was insufficient as a matter of law and renders his conviction a violation of his right to due process of law. (People v Calabria, 3 NY3d 80; People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Lee, 96 NY2d 157; United States v Wade, 388 US 218.) III. The denial, without a hearing, of appellant’s motion to vacate his judgment of conviction on the basis of newly discovered evidence was an abuse of discretion as a matter of law and violated his rights to due process of law. (People v Salemi, 309 NY 208; People v Hildenbrandt, 125 AD2d 819; People v Collins, 173 Misc 2d 350, 250 AD2d 379; People v Santos, 1 NY3d 548; People v Baxley, 84 NY2d 208; People v Fields, 66 NY2d 876; People v Brown, 56 NY2d 242; People v Crimmins, 38 NY2d 407; People v Calabria, 3 NY3d 80; People v Cole, 1 Misc 3d 531.) IV Should the court reject point III because of a lack of due diligence on trial counsel’s part, it should hold that appellant was deprived of his federal and state constitutional rights to the effective assistance of counsel because defense counsel did not sufficiently investigate the possibility that another person committed the crime. (McMann v Richardson, 397 US 759; Strickland v Washington, 466 US 668; People v Henry, 95 NY2d 563; People v Benevento, 91 NY2d 708; Wiggins v Smith, 539 US 510; People v Bennett, 29 NY2d 462; People v Bell, 48 NY2d 933; People v Droz, 39 NY2d 457; People v LaBree, 34 NY2d 257; Eze v Senkowski, 321 F3d 110.)

      Thomas J. Spota, District Attorney, Riverhead (Anne E. Oh of counsel), for respondent.
    I. The unanimous jury verdict convicting defendant of robbery in the first degree was proper in all respects. (People v Leonti, 18 NY2d 384; People v De Tore, 34 NY2d 199; People v Cerullo, 18 NY2d 839; People v Lobel, 298 NY 243; People v Martin, 50 NY2d 1029; People v Calabria, 3 NY3d 80; People v Lee, 96 NY2d 157; People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Malizia, 62 NY2d 755, 469 US 932.) II. The trial court properly prohibited defense counsel from showing an unauthenticated photograph to the jury. (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56; People v Finger, 95 NY2d 894; People v Norman, 85 NY2d 609; People v Primo, 96 NY2d 351; People v Feldman, 299 NY 153; People v Nitzberg, 287 NY 183; People v Ventimiglia, 52 NY2d 350; People v Austin, 112 AD2d 242; Taylor v Illinois, 484 US 400.) III. Although it is beyond the court’s review, the trial court’s discretionary denial of defendant’s postconviction motion to vacate on grounds of newly discovered evidence was appropriate. (People v Santos, 1 NY3d 548; People v Fields, 66 NY2d 876; People v Crimmins, 38 NY2d 407; People v Brown, 56 NY2d 242; People v Baxley, 84 NY2d 208; People v Smith, 63 NY2d 41; People v Salemi, 309 NY 208; People v Welcome, 37 NY2d 811; People v Zambrana, 142 AD2d 744; People v Mendez, 147 AD2d 712.) IV Defendant was not deprived of effective assistance of counsel at trial. (People v Hobot, 84 NY2d 1021; People v Clark, 254 AD2d 299; People v Jackson, 70 NY2d 768; People v Flores, 84 NY2d 184; People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Ellis, 81 NY2d 854; Strickland v Washington, 466 US 668; People v Vilardi, 76 NY2d 67; People v Rivera, 71 NY2d 705.)
   OPINION OF THE COURT

G.B. Smith, J.

There are two primary issues before us on this appeal. First, defendant alleges that the trial court abused its discretion in denying third-party culpability evidence that would have shown that someone other than defendant committed the robbery charged in the indictment (see People v Primo, 96 NY2d 351, 356-357 [2001]). Second, defendant also contends that the People failed to prove his guilt of the crime of robbery, first degree beyond a reasonable doubt. We reject both contentions and affirm the order of the Appellate Division.

Facts

A jury convicted defendant of robbing the El Classico Restaurant in Brentwood, New York. One of the two persons in the restaurant, Jose Vasquez, the owner and cook, identified defendant at trial. The second witness, an employee at the restaurant, Otilia Ruiz, failed to identify defendant at trial.

At approximately 8:20 p.m. on February 3, 1999, defendant entered the restaurant, asked for a menu and ordered a shrimp dinner. He subsequently went to the kitchen door to ask how long it would take to prepare the meal. Velasquez responded 10 to 15 minutes. Thereafter, Velasquez came out of the kitchen and went over to Ruiz who was standing behind the cash register in the bar area. He asked Ruiz what she was doing with the dollar bill in her hand, and she responded that the customer (defendant), who was also in the bar area, wanted change.

Ruiz testified that after Velasquez returned to the kitchen, the customer went to the cash register, opened it and began taking money. Ruiz grabbed the robber by the shirt, told him not to take the money and screamed to Velasquez that they were being robbed. The robber pulled out a knife and held Ruiz by the neck with his other hand. Velasquez heard Ruiz scream. He came out of the kitchen and saw the defendant leaving the restaurant. Velasquez described the defendant as a “white male, tall, like 6'2", heavy, weigh like 250, 275.” He described the defendant as having chestnut colored hair. Velasquez also described the car as “like Chevy or Oldsmobile or Buick, four door, 2-tone, brown on the bottom, beige on the top.” This description matched the car of defendant’s roommate, Anthony Tralongo. Velasquez attempted to follow the car but lost it after a few blocks.

Also on February 3, 1999, Ruiz gave a statement to Detective Conde of the Suffolk County Police Department describing the robber as a “big white guy” wearing blue docker type pants, a blue striped shirt, and brown work boots. She also told the police that defendant was “very large, about 6' 2,” 250-275 pounds, clean shaven, rotten teeth, and bad breath and dark hair.

On the day following the robbery, both Velasquez and Ruiz identified defendant from a photograph of six white men. Based on the descriptions, the detectives went to defendant’s home where they saw a two-toned brown Chevrolet Celebrity in the driveway. The detectives arrested the defendant and impounded the car, which belonged to his roommate. Several days later, Velasquez identified the car at the police precinct where the police had placed it among 20 other cars.

At trial, Velasquez, in addition to testifying about the facts of the robbery, also testified to selecting defendant from two lineups of six men, all in white jumpsuits. According to testimony by Detective Gieck, defendant was allowed to select his number in the lineup. The lineups occurred sequentially. In the first lineup, he selected number three and in the second, number six. According to the detective, defendant was selected both times by Velasquez as the robber of El Classico Restaurant.

At trial the arresting officer, Detective Gieck, testified that Velasquez told him on the night of February 3, 1999, that the person who robbed his restaurant was “a big white male, 250 pounds.” Defense counsel asked defendant to stand up and asked Detective Gieck how much his client appeared to weigh. The detective replied “about 250 pounds.” Defense counsel also asked Detective Gieck about a string of robberies being investigated in a nearby precinct at the time of the El Classico robbery. The detective indicated that the perpetrator of those robberies weighed over 450 pounds.

Defense counsel also had a newspaper photo of a third party marked for identification as Exhibit E. The detective was shown the picture of Guilfoyle but did not recognize it. Ruiz, however, failed to make a positive identification, and in fact did not identify defendant as the person who robbed the restaurant. On the People’s application, defendant was required to stand and show his teeth to the jury so that they could make an analysis of whether or not the teeth were rotten and chipped.

Defendant chose not to cross-examine Ruiz and, thus, did not show her a picture of Guilfoyle. At the end of Ruiz’s testimony, defendant made a motion to dismiss based upon insufficient evidence, which was denied. Defendant next made an offer of proof to enter a newspaper photograph of Anthony Guilfoyle, who defendant claims is the actual robber of the restaurant. Counsel claimed that because Guilfoyle had robbed two or three establishments in the area prior to February 3, 1999 and two or three after February 3, 1999, and because he resembled the description of the robber given by Velasquez and Ruiz, there was a chance that Guilfoyle was the robber. To lay a foundation for the photograph, defendant offered to call the police officers, who made the arrests in the Guilfoyle case, to describe the prior robberies, and the indictment against Guilfoyle. The officers were produced on September 2. Prior to any testimony from the officers, the court ruled that it would not permit the photograph into evidence because there was no evidence linking that person to the restaurant robbery. The defense attorney then stated that the defendant would not put in a case and would not call the officers.

Defendant was convicted of first degree robbery and sentenced to a determinate term of 11 years. On June 14, 2000, defendant moved pro se in the trial court to vacate his conviction on the basis of ineffective assistance of counsel, and on the basis that the prosecution failed to prove his guilt beyond a reasonable doubt (see CPL 440.10 [1] [h]). On September 5, 2000, the trial court denied the motion.

On February 10, 2003, Supreme Court also denied defendant’s CPL 440.10 (1) (g) motion to vacate the conviction based on newly discovered evidence, concluding that the affidavit made in support of the motion, in which Ruiz stated that she is “90%” certain that Guilfoyle is the person who robbed her, was not newly discovered, and that defense counsel had the opportunity to use the photograph of Guilfoyle at trial to cross-examine her but chose not to. Supreme Court wrote:

“Here, the ‘newly discovered evidence’ offered by the defendant consists of an affidavit in which Otilia Ruiz states that the defendant was not the robber, and that she is 90% certain that Anthony Guilfoyle was the true perpetrator. Although the defendant contends that this evidence would probably change the result if a new trial is granted, the court is not convinced that such is the case. Ruiz essentially testified at trial that the defendant was not the robber, and the jury nevertheless found the defendant guilty based on identification testimony by Jose Velasquez. It is by no means probable that Ruiz’s ability to identify Guilfoyle as the robber would have affected the jury’s assessment of the identification testimony.”

Moreover, there is no evidence that the picture revealed the rotten teeth that Ruiz noted in her description of the robber.

Defendant appealed to the Appellate Division which, on March 29, 2004, affirmed the conviction and affirmed both orders denying defendant’s CPL 440.10 motions to vacate the judgment of conviction. The Appellate Division found that the evidence against defendant was “legally sufficient to establish the defendant’s guilt beyond a reasonable doubt” (see People v Schulz, 5 AD3d 799, 800 [2d Dept 2004]). Further, the Appellate Division determined that defendant had not proffered newly discovered evidence and that the motion to vacate the conviction was properly denied without a hearing.

A Judge of this Court granted defendant leave to appeal.

Discussion

People v Primo (96 NY2d 351, 356 [2001]), which held that before permitting evidence that another party committed the crime for which a defendant is on trial, the court must balance the probity of the evidence against the prejudicial effect to the People, is determinative of this appeal. In that case, this Court reversed a conviction for attempted murder in the second degree based upon the trial court’s exclusion of ballistics evidence tied to another person who was present at the scene. This Court stated (at 357), “The admission of evidence of third-party culpability may not rest on mere suspicion or surmise.” The concern is that the evidence of third-party culpability will cause “undue prejudice, delay and confusion” of the evidence presented to the jury. In order to determine whether the evidence will be admitted, the court must allow the defense “to make an offer of proof outside the presence of the jury to explain how it would introduce evidence of third party culpability.” Then, the court must allow the prosecutor to make counter-arguments.

In the case at bar, the court allowed the defense to make a proffer of evidence concerning the photograph outside the presence of the jury concerning how he would lay a foundation to enter the photograph of Guilfoyle. The prosecution countered that there was no foundation for entering the photograph. The court, after hearing the defense, determined that there was no “sufficient nexus between that suspect or the person that you say committed the crimes, and this crime, to show that that person committed this particular crime.” However, the court stated it would allow the defense to call two officers to testify concerning the photograph of Guilfoyle, but defendant in the end chose not to call those witnesses. Moreover, Ruiz was not cross-examined and was not shown Guilfoyle’s photograph.

Defendant offers no evidence which shows a modus operandi, a witness who saw Guilfoyle at the scene or even a connection between the getaway car and Guilfoyle. What defendant offers on this appeal is a Newsday article, dated March 10,1999, which describes Guilfoyle’s crime spree, and the affidavit of Ruiz, dated March 10, 2002, taken three years after the crime was committed, Ruiz’s inability to identify defendant at trial as the robber, a picture which allegedly shows that defendant and Guilfoyle resemble one another, and the fact that Guilfoyle committed several robberies in the vicinity of El Classico around February 3, 1999.

Unlike in Primo, where the alleged suspect was at the scene of the crime, identified as the shooter, and where the ballistics report matched a gun of the person who defendant said committed the crime, here there is no evidence linking Guilfoyle to the crime at El Classico. “While evidence tending to show that another party might have committed the crime would be admissible, before such testimony can be received there must be such proof of connection with it, such a train of facts or circumstances as tend clearly to point out someone besides the prisoner as the guilty party” (see Greenfield v People, 85 NY 75, 89 [1881]). “Remote acts, disconnected and outside of the crime itself, cannot be separately proved” to show that someone other than the defendant committed the crime (see id.). In the circumstances of this case, the trial court did not abuse its discretion in determining that the photograph of Guilfoyle would have caused undue delay, prejudice and confusion, and properly precluded the evidence.

Insufficient Evidence

Defendant argues that the evidence against him was insufficient and that his CPL 440.10 (1) (h) motion should have been granted. The standard for sufficiency of evidence is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found essential elements of the crime beyond a reasonable doubt” (see Jackson v Virginia, 443 US 307, 319 [1979] [citation omitted]; see also People v Jennings, 69 NY2d 103, 114 [1986]).

Under Penal Law § 160.15, the jury had to find that defendant forcibly stole property, and in the course of the commission of the crime or immediate flight therefrom, he or another participant in the crime used or threatened the immediate use of a dangerous instrument. In the case at bar, defendant is accused of entering El Classico Restaurant, taking money from the cash register and using a knife to accomplish the robbery. All acts, if found to be true, support a finding of robbeiy in the first degree.

Velasquez testified that he saw defendant in the restaurant and spoke with him, and then again saw him leaving the restaurant after having committed the robbery. He chased the defendant in his car. Velasquez identified defendant in a photo array, and in a police lineup. At trial, Velasquez pointed out the defendant as the one who had committed the crime. Ruiz testified that someone forcibly took money from the cash register where she was working and that this person had no authority to take the money. While she did identify defendant in a photo array the next day, she could not point out defendant at trial as the one who had committed the crime.

As we noted in People v Arroyo (54 NY2d 567, 578 [1982]) “the testimony of a single witness [can be enough] to support a conviction,” noting that it is typically the province of the jury to determine a witness’ credibility (see also People v Contes, 60 NY2d 620, 621 [1983] [defendant identified by tattoos enough evidence to convict]).

When two eyewitnesses to a crime give conflicting testimony, it is the jury that must weigh the evidence and determine who to believe (see People v Jackson, 65 NY2d 265, 272 [1985] [“That two. or more witnesses give conflicting testimony, however, simply creates a credibility question for the jury to be determined by them in the context of the entire body of evidence before them” (citation omitted)]; see also People v Stewart, 40 NY2d 692, 699 [1976] [it is different when the evidence comes from a single prosecution witness “who offer(s) irreconcilable testimony pointing in both directions to guilt and innocence”]; People v Ledwon, 153 NY 10, 18 [1897]). In the instant matter, the jury weighed the evidence and found Velasquez’s identification of defendant to be credible.

Ineffective Assistance of Counsel

In order to sustain a claim of ineffective assistance of counsel, New York courts examine the trial as a whole to determine whether defendant was afforded meaningful representation (People v Benevento, 91 NY2d 708, 713 [1998]). In the case at bar, defendant argues that trial counsel’s failure to have Anthony Tralongo, his roommate, testify as an alibi witness concerning his whereabouts on the evening of February 3, 1999, and failure to interview Ruiz prior to trial constitute ineffective assistance of counsel. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result” (see Strickland v Washington, 466 US 668, 686 [1984]).

Here, there has been no showing that trial counsel was deficient in failing to provide a meaningful defense in light of the circumstances (see People v Hobot, 84 NY2d 1021, 1022 [1995] [claim for ineffective assistance of counsel failed; defendant did not meet “high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation”]; People v Flores, 84 NY2d 184, 189 [1994] [defendant received meaningful representation]). The trial record indicates that defense counsel made a tactical decision not to call defendant’s roommate after Ruiz failed to identify defendant. “Hindsight should not escalate what may have been a few tactical errors into ineffective assistance of counsel” (People v Baldi, 54 NY2d 137, 151 [1981]).

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

Rosenblatt, J. (dissenting in part).

Respectfully, I dissent from so much of the Court’s decision as upholds the denial of defendant’s CPL 440.10 (1) (g) motion without a hearing. On the record before us, the possibility of defendant’s actual innocence is too high to justify denial of the CPL 440.10 motion without a hearing. The majority determined that the case is legally sufficient, and no one can quarrel with that. My discomfort stems from the combined effect of two rulings: the first, denying the introduction at trial of Guilfoyle’s photograph; and the second, summarily denying defendant’s posttrial motion after the primary victim, Ruiz (who at trial said defendant was not the robber), submitted an affidavit stating that she is 90% certain that the person in the photograph—Guilfoyle—was the robber. Coming on the heels of a borderline ruling disallowing Guilfoyle’s photograph at trial, the affidavit is too potent to be cast aside.

I’ll elaborate.

(1) As between Ruiz and Velasquez, Ruiz is the more important witness. She was the one whom the robber held at knife-point. Velasquez did not testify that he saw the actual crime; he did not see it. He said he saw defendant in the restaurant. I do not discount his testimony or his identification of the car. It is important evidence and inferential enough to give the prosecution a legally sufficient case, but it is not as compelling as Ruiz’s testimony combined with her posttrial affidavit.

(2) The majority states that defendant was arrested based on the descriptions of both Velasquez and Ruiz. On the record before us, however, we do not know how it came about that police suspicion settled on defendant. At oral argument, the People told us they did not know.

(3) The majority points out that Guilfoyle robbed two or three establishments before and two or three after the robbery in question. This characterization is accurate, but it does not emphasize, as I think it should, the extraordinary proximity in time and place of Guilfoyle’s crimes compared with the El Classico robbery. Guilfoyle’s arrest reports reveal that he was charged with a robbery the same night as the El Classico robbery, roughly three hours before the El Classico crime and only 10-12 miles away. Guilfoyle’s other robberies occurred on January 27, 1999, at a small business fewer than three miles away from El Classico; then again, later in the evening on January 27, at another small business roughly five miles away from El Classico; again on February 1, at a small business 8-10 miles away; on February 5, at 5:45 p.m. roughly five miles from El Classico; and finally, on March 7, at another small business about five miles away.

There was also Guilfoyle’s modus operand!: in each instance, he took money from the cash register of a small business by intimidating the worker and sometimes pretending to have a gun. The El Classico robber’s method seems similar enough to Guilfoyle’s technique that the connection should have been explored. I cannot agree with the majority that Guilfoyle’s robberies were marked by “remoteness” from the one involved here.

Affirming both the conviction and the CPL 440.10 denial is disquieting, but not because Primo (People v Primo, 96 NY2d 351, 356 [2001]) created a rule that, if applied to a pre-Primo case, would call for a different result. Primo articulates a better test than the earlier “clear link” standard because it is less mechanical and allows the court, in a conventional way, to balance probative value against prejudice. The problem here would be much the same had Primo never been decided. Primo implicitly recognized that a trial, if not properly constrained, could become skewed and the prosecution put to the impossible burden of having to disprove the guilt of everyone who, in a photograph, looks like the accused.

If that were allowed, a criminal case could deteriorate into a chaotic series of minitrials, one per photograph, given the ease with which defendants can find pictures of felons who resemble them (at least the ordinary defendant can, even if not this one). Primo should not be read as having opened that door. On the contrary, most judges, I suspect, had instinctively applied a Primo prejudice/probative value test without calling it that. We just gave it a better name, reminding judges that discretion is antithetical to rigidity and some rulings call for more elasticity than others.

This is all worth mentioning because of what happened at the trial. In refusing to let the jury see Guilfoyle’s photograph, the court did not rule it prejudicial or valueless. Rather, the court considered whether a proper foundation had been proffered, which was the prosecution’s only objection, and ruled that the photograph’s connection to the case was too tenuous. It was a very close call.

In trying to get Guilfoyle’s photograph into evidence, the defense pointed out that it could establish a foundation by testimony from the detectives who had worked on the Guilfoyle cases. The defense argued that the detectives’ description would confirm that Guilfoyle’s method of operation matched the El Classico crime. In response to the prosecution’s challenge that Guilfoyle’s appearance may have changed since the date of the photograph, the defense explained that the police officers would be able to describe any differences between the photograph and Guilfoyle’s contemporary appearance. It was only after the defense had rebuffed the prosecution’s foundation objection that the trial court, on its own, began wondering aloud whether a sufficient link existed between the photograph and the crime. The trial court based its ruling on the proper conclusion that a mere similarity of appearance would not suffice to make the photograph admissible. The court rejected the defense’s protestations that the close proximity in time and place, coupled with the similarity of method, of Guilfoyle’s crimes made the admissibility of the photograph rest on a good deal more than mere physical resemblance.

Had the court allowed the jury to see the photograph, no one could have justly criticized the ruling on “foundation” grounds or as an exercise of discretion. But excluding Guilfoyle’s photograph was within the court’s discretion, and if that were all there was before us I would close the book on this case.

It’s what happened afterward that’s unsettling. By submitting a posttrial affidavit identifying Guilfoyle, Ruiz has, in hindsight, shaken the court’s ruling barring the photograph. Her affidavit does not make the ruling wrong, or reversible, because we do not use hindsight to overturn trial judges’ determinations. For that reason, I agree with the Court that reversal of the conviction is not now warranted.

The CPL 440.10 motion, however, should not have been denied without a hearing, and in my view it was an abuse of discretion to, in effect, reject the Ruiz affidavit out of hand. Rather than affirming the denied of a hearing, this Court should remand so that Ruiz can be called before the court, under oath, to give her a chance to see Guilfoyle under court-arranged auspices. The court could then determine whether the conviction was a miscarriage of justice. As a dissenter, of course, I cannot make this happen. It would seem to me, though, that there is nothing to be lost and everything to be gained if this chapter were fulfilled. The Guilfoyle photograph is too blurry to justify any kind of certainty. After seeing Guilfoyle in person, however, Ruiz may conclude that he is not the robber. If so, the case is over and justice is served. But if Ruiz insists that Guilfoyle is the man who robbed her, I should think that any right-minded prosecutor would want to know of it. Given the affirmance, the prosecutor’s alternative is to do nothing and never put Ruiz to a test before the wise and experienced judge who heard this case.

. Given her affidavit, Ruiz’s testimony at a CPL 440.10 hearing would necessarily produce an additional measure of truth. Prosecutorial inaction would be lawful, but regrettable. The interests of finality count for a great deal, and may be alluring, but they are not always consistent with the higher ends of justice.

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

Order affirmed.

      . While defendant additionally seeks relief on the ground of newly discovered evidence, “[t]his [C]ourt. . . has no power to review the discretionary denial of a motion to vacate judgment upon the ground of newly discovered evidence” (People v Crimmins, 38 NY2d 407, 409 [1975]; see also People v Smith, 63 NY2d 41, 66 n 4 [1984]; People v Brown, 56 NY2d 242, 246 [1982]).

      . During the cross-examination of Velasquez and Detective Gieck, defense counsel brought out that Velasquez had told the police that the getaway car had a license plate with a “1” and a “T” but this did not match the license plate in the defendant’s driveway.

      . Prior to trial, a Wade hearing was held on April 7 and April 15, 1999, and the motions to suppress the lineup identifications of defendant were denied.

      . The dissent highlights the “extraordinary proximity in time and place of Guilfoyle’s crimes compared with the El Classico robbeiy” and points out that Guilfoyle was charged with robberies of small businesses only miles away (dissenting op at 532). Miles away, however, is hardly “extraordinary proximity” in the suburbs of Suffolk County, which are densely inhabited by people and small businesses. Moreover, the dissent states that the defense could have established “a foundation by testimony from the detectives who had worked on the Guilfoyle cases” (dissenting op at 533). Perhaps, but it chose not to. The dissent fails to recognize that the People produced both detectives in court the day after defense counsel’s request. Defense counsel, however, chose to rest its case, stating “[a]fter the time given to us by the Court to discuss the next phase of this trial with my client, I state to the Court we do not intend to call any witnesses on behalf of the defendant.”


author: Graffeo, J.

text:
    [829 NE2d 1203, 797 NYS2d 35]
    The People of the State of New York, Appellant, v Jason Williams, Respondent.
    Argued April 14, 2005;
    decided May 10, 2005

      POINTS OF COUNSEL

      Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for appellant.
    Defendant was lawfully detained by peace officers acting outside their geographical jurisdiction. (People v La Fontaine, 235 AD2d 93, 92 NY2d 470; People v Patterson, 78 NY2d 711; People v Taylor, 73 NY2d 683; People v Gallina, 66 NY2d 52; People v Moselle, 57 NY2d 97; People v Karp, 80 Misc 2d 965; Sutton v Evans, 4 AD2d 580; People v Alvarez, 84 Misc 2d 897; People v Averill, 124 Misc 383.)
    Respondent precluded.

      Kevin L. Wright, Albany, Susan L. Valle and Lisa Drury for District Attorneys Association of State of New York, amicus curiae.
    Suppression is not the appropriate remedy for a technical and unintended violation of a state statute that was not implemented to protect a constitutional right. (United States v Leon, 468 US 897; Arizona v Evans, 514 US 1; United States v Calandra, 414 US 338; Illinois v Krull, 480 US 340; United States v Janis, 428 US 433; Sackler v Sackler, 15 NY2d 40; Schwartz v Texas, 344 US 199; People v Dinan, 11 NY2d 350; People v Harris, 48 NY2d 208; People v Patterson, 78 NY2d 711.)

      Mark J. Mahoney, New York City, Alfred O’Connor, Albany, and Timothy P Murphy, Buffalo, for New York State Association of Criminal Defense Lawyers and others, amici curiae.
    I. As appellant failed to argue at the trial court level that the exclusionary rule was not required as a result of the unauthorized arrest, this Court is precluded from deciding the issue. (People v Romero, 91 NY2d 750; People v Chavis, 91 NY2d 500; People v Goodfriend, 64 NY2d 695; People v Parris, 83 NY2d 342; People v Nieves, 67 NY2d 125; People v Johnson, 64 NY2d 617; People v Dodt, 61 NY2d 408.) II. Evidence obtained as a result of an arrest made outside a peace officer’s authorized powers must be excluded like any other illegally seized evidence. (People v Cantor, 36 NY2d 106; People v Hollman, 79 NY2d 181; People v Burr, 70 NY2d 354; People v Martinez, 37 NY2d 662; People v Payton, 51 NY2d 169; People v Bigelow, 66 NY2d 417; Mapp v Ohio, 367 US 643; Miller v United States, 357 US 301; People v Rogers, 52 NY2d 527; People v Young, 55 NY2d 419.) III. A peace officer who takes advantage of his apparent authority to effect an unauthorized arrest and investigation of a citizen by utilizing a patrol vehicle with activated emergency lights, by interrogating and removing the person from his vehicle and searching the person may not have the seized evidence admitted as the product of a hypothetical “citizen’s arrest.” (People v Stith, 69 NY2d 313; People v Adams, 53 NY2d 241; People v Mendez, 28 NY2d 94; People v Di Stefano, 38 NY2d 640; People v Roth, 66 NY2d 688; People v Knapp, 52 NY2d 689; People v Payton, 45 NY2d 300; People v Fitzpatrick, 32 NY2d 499; People v Harris, 77 NY2d 434, 495 US 14; People v Ingle, 36 NY2d 413.)
   OPINION OF THE COURT

Graffeo, J.

While patrolling a housing project, two peace officers employed by the Buffalo Municipal Housing Authority observed defendant driving an automobile on a public street adjacent to the project. The officers stopped defendant because he allegedly was not wearing a seat belt. After defendant informed the officers that he did not have a valid driver’s license, the officers ordered him to step out of his vehicle.

In response to questioning by an officer, defendant replied in a manner that led the officer to suspect that defendant had an object in his mouth. Defendant opened his mouth, revealing what appeared to be a plastic bag protruding from underneath his tongue. When asked to lift his tongue, defendant shoved the officer and fled. Upon being apprehended after a brief chase, defendant spit the bag onto the ground. The bag, which was recovered by the officers, appeared to contain crack cocaine.

As a result of this incident, defendant was indicted for criminal possession of a controlled substance in the fifth degree and several violations of the Vehicle and Traffic Law. Before trial, defendant moved to dismiss the charges, arguing that the initial seizure for a traffic infraction was unlawful because the Housing Authority peace officers lacked jurisdiction outside the boundaries of the housing project and the officers were not acting pursuant to their special duties as Housing Authority peace officers when they stopped him for a seat belt violation. The People countered that the seizure was lawful because the peace officers were within their geographical jurisdiction and, even if they were not, the stop was justified as a “citizen’s arrest.”

Supreme Court agreed with defendant and dismissed the charges. The court concluded that there was no statutory authority for the peace officers to apprehend defendant for an offense committed outside their geographic area of employment and the People had failed to demonstrate that the officers were acting pursuant to their special duties when they stopped defendant for a seat belt violation. The court further rejected the People’s contention that the traffic stop was a valid citizen’s arrest.

On the People’s appeal, the Appellate Division affirmed for the reasons stated by Supreme Court. A Judge of this Court granted leave.

Before this Court, the People concede that the alleged traffic infractions and the seizure of defendant occurred outside the geographical jurisdiction of the Buffalo Municipal Housing Authority peace officers. Instead, the People rely on their assertion that the apprehension of defendant was the equivalent of a citizen’s arrest. We are unpersuaded and therefore affirm.

The Criminal Procedure Law differentiates between the respective powers of arrest possessed by peace officers and private citizens (compare CPL 140.25 and 140.27, with CPL 140.30, 140.35 and 140.40). In fact, the Legislature has specified that the authority to make a citizen’s arrest extends only to a “person acting other than as a police officer or a peace officer” (CPL 140.35, 140.40 [emphasis added]).

Aside from this statutory distinction, there also are functional differences between the powers of peace officers and private citizens. A peace officer may arrest upon reasonable cause to believe an offense has occurred (see CPL 140.25 [1]), whereas a citizen’s arrest is justifiable only if the arrestee “has in fact committed” an offense (CPL 140.30 [1]). Additionally, peace officers generally are authorized to apprehend an individual for criminal activity only when the offense is committed within the officer’s “geographical area of . . . employment” (CPL 140.25 [3] ) or when the officer acts “pursuant to his special duties” (CPL 140.25 [1]), unless the arrest is for a felony (CPL 140.25 [4] ). Similar limitations are not placed on the ability of a private citizen to make an arrest; the only limitation is that an arrest for a nonfelony offense occurring in the citizen’s presence must be made “in the county in which such offense was committed” (CPL 140.30 [2]). To accept the People’s argument and treat a peace officer as an ordinary citizen would render these purposefully drawn differences—and the plain language chosen by the Legislature—meaningless. This we decline to do.

We therefore conclude that the traffic stop in this case cannot be validated using the citizen’s arrest provisions of the Criminal Procedure Law because the Housing Authority peace officers were not “acting other than as a police officer or a peace officer” (CPL 140.35, 140.40; cf. McKinley v Commonwealth, 564 Pa 565, 583 n 18, 769 A2d 1153, 1164 n 18 [2001]; People v Lahr, 147 Ill 2d 379, 383, 589 NE2d 539, 540-541 [1992]). This, of course, is not to say that an individual employed as a peace officer may never under any circumstances effect a citizen’s arrest. We hold only that a peace officer who acts under color of law and with all the accouterments of official authority cannot.

The People’s remaining argument—that despite the violation of CPL 140.25, suppression of evidence and dismissal of the charges is unnecessary under People v Patterson (78 NY2d 711 [1991])—is not preserved for our review.

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

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

Order affirmed.