author: Abdus-Salaam, J.

text:
    [57 NE3d 53, 36 NYS3d 861]
    The People of the State of New York, Respondent, v Charles Smith, Appellant. The People of the State of New York, Respondent, v Tyrell Ingram, Appellant. The People of the State of New York, Respondent, v Isma McGhee, Also Known as Izzy, Appellant.
    Argued June 1, 2016;
    decided June 28, 2016

      Robert S. Dean, Center for Appellate Litigation, New York City (Claudia B. Flores of counsel), for appellant in the first above-entitled action.

      Cyrus R. Vance, Jr., District Attorney, New York City (Patricia Curran and Patrick J. Hynes of counsel), for respondent in the first above-entitled action.

      Stanley Neustadter, Cardozo Appeals Clinic, New York City (Elsa Mitsoglou and Jeremey Gutman of counsel), for appellant in the second above-entitled action.

      James A. McCarty, Special Acting District Attorney, White Plains (Raffaelina Gianfrancesco, Laurie G. Sapakoff and Steven A. Bender of counsel), for respondent in the second above-entitled action.

      Robert S. Dean, Center for Appellate Litigation, New York City {Mark W. Zeno of counsel), and Sidley Austin LLP, New York City {Angela Zhu of counsel), for appellant in the third above-entitled action.

      Cyrus R. Vance, Jr., District Attorney, New York City {Sylvia Wertheimer, Patrick J. Hynes and Sheila O’Shea of counsel), for respondent in the third above-entitled action.

      David C. Schopp, Legal Aid Bureau of Buffalo, Inc., Buffalo (:Timothy P. Murphy and Sherry A. Chase of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae in the first above-entitled action.

      Seymour W. James, Jr., The Legal Aid Society, New York City (Cynthia H. Conti-Cook of counsel), amicus curiae in the first, second and third above-entitled actions.
   OPINION OF THE COURT

Abdus-Salaam, J.

The primary issue in these appeals is whether the trial courts abused their discretion in precluding any cross-examination into allegations of a law enforcement officer’s prior misconduct made in an unrelated federal lawsuit. These cases stand for the unremarkable proposition that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination. We have indicated as much in prior cases (see People v Garrett, 23 NY3d 878 [2014]; People v Gissendanner, 48 NY2d 543 [1979]), as have the Appellate Divisions considering this issue (see e.g. People v Daley, 9 AD3d 601 [3d Dept 2004]; People v Andrew, 54 AD3d 618 [1st Dept 2008]; People v Jones, 193 AD2d 696 [2d Dept 1993]). Accordingly, we apply the well-established rules governing the use of this type of impeachment material to the specific facts of each of these three cases.

I.

The United States Supreme Court has stated that “[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested” (Davis v Alaska, 415 US 308, 316 [1974]) and that the right of cross-examination is “implicit in the constitutional right of confrontation, and helps assure the accuracy of the truth-determining process” (Chambers v Mississippi, 410 US 284, 295 [1973] [internal quotation marks and citation omitted]). While “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish” (Delaware v Fensterer, 474 US 15, 20 [1985]), this Court has observed in Gissendanner (48 NY2d 543) and People v McGee (68 NY2d 328 [1986]) that restrictions on the right to cross-examine key prosecution witnesses may deprive defendants of the means to discredit the witnesses and cast doubt on the prosecution’s case. It is elementary that

“impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful. One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious or criminal conduct bearing on credibility” (People v Walker, 83 NY2d 455, 461 [1994] [citations omitted]).

Given these central principles, prosecution witnesses — and indeed, even a testifying defendant — may be cross-examined on “prior specific criminal, vicious or immoral conduct,” provided that “the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility” (People v Sandoval, 34 NY2d 371, 376 [1974]). Of course, where a witness other than the defendant testifies, the court, in considering the parameters of permissible cross-examination, is not focused on protecting the rights of the accused, and on the concern that permitting evidence of bad conduct will serve merely to demonstrate a propensity to commit the crime charged (see People v Ocasio, 47 NY2d 55, 58 [1979]). After all, for a nondefendant witness, “neither conviction nor vindication, imprisonment nor freedom, hangs in the balance” (id. at 59). However, in all cases the trial court retains broad discretion to weigh the probative value of evidence of prior bad acts against the possibility that it “would confuse the main issue and mislead the jury ... or create substantial danger of undue prejudice to one of the parties” (People v Corby, 6 NY3d 231, 234-235 [2005] [internal quotation marks and citation omitted]; see also People v Harrell, 209 AD2d 160, 160 [1st Dept 1994], affd 86 NY2d 806 [1995]; see generally People v Dawson, 50 NY2d 311, 322 [1980]; People v Gissendanner, 48 NY2d at 548; Sandoval, 34 NY2d at 374 [“(t)he nature and extent of cross-examination have always been subject to the sound discretion of the Trial Judge”]).

In Garrett, we concluded that “civil allegations” of misconduct in a federal lawsuit filed against a law enforcement agent “were favorable to defendant as impeachment evidence” (Garrett, 23 NY3d at 886), thereby necessarily determining that such allegations can bear on a law enforcement officer’s credibility as a witness. The defendant in Garrett argued in his criminal case that one detective in particular “coerced him into making a false confession” and “[t]he federal complaint made similar allegations against [the same detective]: although it did not explicitly allege that the confession [the same detective] procured was false, the complaint described coercive tactics [the same detective] allegedly used to extract a confession against the plaintiff’s will” (id.). This Court noted that the evidence “favored defendant’s false confession theory” in that case (id.). Nonetheless, in Garrett, we noted that the trial judge could have exercised discretion and precluded inquiry into this “favorable” impeachment evidence (id. at 892).

Our recognition of the relevance of prior bad acts that have been alleged in court filings, but not proved at trial, is consistent with our precedent; we have previously decided that there is no prohibition against cross-examining a witness about bad acts that have never been formally proved at a trial (see People v Sorge, 301 NY 198, 201 [1950]). Likewise, a police witness’s prior bad act that similarly has not been proved in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination. Nor do allegations of police misconduct lose their relevance to a police witness’s credibility simply because the alleged bad acts are not regarded in all cases as criminal or immoral. Indeed, we have approved cross-examination on a defendant’s use of aliases and other suspect, but not criminal, conduct because

“even where the proof falls outside the conventional category of immoral, vicious or criminal acts, it may be a proper subject for impeachment questioning where it demonstrates an untruthful bent or significantly reveals a willingness ... to place the advancement of his individual self-interest ahead of principle or of the interests of society” (Walker, 83 NY2d at 461 [internal quotation marks, brackets and citations omitted]).

As we indicated in Garrett, and emphasize here, law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination. The same standard for good faith basis and specific allegations relevant to credibility applies — as does the same broad latitude to preclude or limit cross-examination.

Where a lawsuit has not resulted in an adverse finding against a police officer, as is the case with these three appeals, defendants should not be permitted to ask a witness if he or she has been sued, if the case was settled (unless there was an admission of wrongdoing) or if the criminal charges related to the plaintiffs in those actions were dismissed. However, subject to the trial court’s discretion, defendants should be permitted to ask questions based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness.

From the above, the logical framework for analysis of the issue is clear. First, counsel must present a good faith basis for inquiring, namely, the lawsuit relied upon; second, specific allegations that are relevant to the credibility of the law enforcement witness must be identified; and third, the trial judge exercises discretion in assessing whether inquiry into such allegations would confuse or mislead the jury, or create a substantial risk of undue prejudice to the parties (see Delaware v Van Arsdall, 475 US 673, 679 [1986]; see People v Harrell, 209 AD2d 160, 160 [1st Dept 1994]).

A federal lawsuit alleging tortious conduct committed by law enforcement officials testifying as prosecution witnesses provides an appropriate good faith basis for raising the issue. Even so, the specific allegations must be relevant to that witness’s credibility (see People v Garrett', People v Daley [where defendant was convicted of promoting prison contraband and menacing in the second degree arising out of an altercation with a correction officer, it was error not to permit the defendant to cross-examine the officer about circumstances underlying a federal lawsuit by another inmate accusing him of assault]; People v Jones [where defendant was convicted of criminal possession of a weapon in the third degree, and defendant claimed he had been framed, it was error to prevent cross-examination of police witness about allegations in lawsuits of police brutality, false arrest and excessive force]; compare Andrew at 618 [court properly exercised discretion not to permit cross-examination of police witness regarding acts alleged in lawsuit where complaint “did not allege, or even support an inference, that . . . detective personally engaged in any specific misconduct or acted with knowledge of the misconduct of other officers”]).

Nevertheless, whether to permit inquiry into such prior bad acts for impeachment purposes are discretionary calls “for the trial courts and fact-reviewing intermediate appellate courts, and . . . generally no further review by this Court is warranted” (People v Walker, 83 NY2d at 458 [citations omitted]). “Because the trial courts have inherent power to control the scope of cross-examination and the use of prior bad acts is a generically accepted practice in that context, this Court will intervene only where the trial court ha[s] either abused its discretion or exercised none at all” (id. at 459 [internal quotation marks and citation omitted]).

Applying those principles to these cases, we hold that the trial courts in Ingram and McGhee abused their discretion and effectively imposed an improper categorical prohibition against permissible cross-examination, although that error was harmless in McGhee. While it is a closer question with respect to Smith, any error in that case was likewise harmless.

II.

People v Smith

Defendant appeals from two judgments of conviction — one for resisting arrest (see Penal Law § 205.30) and the other for criminal sale of a controlled substance in the third degree (see Penal Law § 220.39 [1]). At the first trial, three detectives, members of the Manhattan Borough South Narcotics Squad, testified about a drug transaction conducted between defendant and an individual named Stevenson in Midtown Manhattan. Stevenson handed cash to defendant and, in exchange, defendant gave Stevenson what appeared to be a small object that was later determined to be crack cocaine. The jury reached a verdict on the resisting arrest charge but could not reach a verdict on the narcotics charges, necessitating the second trial.

Prior to commencement of the first trial, defendant made a motion in limine requesting permission to inquire about lawsuits filed against Detectives Zambrano and Lotufo, two of the three detectives who testified at trial. He explained to the court that there were a number of federal civil rights lawsuits against those officers under very similar facts where they made narcotics arrests, the criminal cases were then dropped, the individuals who were arrested commenced lawsuits and the civil cases were settled. The trial judge responded “No.” Defense counsel argued that this went directly to the officers’ credibility. In particular, he wanted to ask one of the officers if he had been involved in the arrest of a certain individual, whether he had said that the individual was “guilty” of a drug sale, and whether the case was later dropped. The trial court said “[absolutely not” and that, among other things, “[w]e don’t know why the [state] cases were dismissed” and “I don’t know why they settled the [federal cases]” and this had nothing to do with the officers’ credibility. After further argument, during which defense counsel again tied the size of the monetary settlements and the fact that the underlying criminal cases against plaintiffs were dropped to his proposed inquiry, the court foreclosed any line of questioning about the acts alleged in the lawsuits, and defendant noted his objection for the record. Defendant did not raise the issue on his retrial where another Judge presided.

The Appellate Division affirmed (122 AD3d 456 [1st Dept 2014]). A Judge of this Court granted leave (24 NY3d 1123 [2015]).

While defense counsel did seek to ask about dismissals of charges and settlements of the lawsuits, and the court properly prohibited this inquiry, counsel also proposed one question in the midst of the inappropriate questions that was appropriate — namely, whether the witness had falsely arrested the plaintiff in one of the lawsuits. This may have been sufficient to advise the court that counsel wished to ask about the underlying facts of cases similar to defendant’s. The colloquy may also be read as a clear indication that the trial judge would not have entertained any proposed line of cross-examination relating to those allegations. However, even assuming that the court abused its discretion in precluding this line of cross-examination, harmless error analysis applies to this type of error, and any error was harmless.

As noted, the People called three plainclothes detectives— King, Zambrano and Lotufo — to testify about a drug transaction that they observed between Stevenson and defendant. King and Zambrano each testified that they were both following defendant and Stevenson and that, after they observed the transaction, they approached defendant and identified themselves as police officers. King said that Zambrano got there first, and defendant was resisting and not complying with Zam-brano. According to both King and Zambrano, there was a struggle and all three of them hit the ground. Zambrano testified that when he tried to grab defendant’s arm, defendant resisted and lifted his hand toward his mouth trying to eat something; that item fell to the ground and it appeared to be a small bag of crack. Leaving aside the testimony of Detective Zambrano, whom defendant sought to impeach, the proof of defendant’s guilt of resisting arrest, through the testimony of Detective King, who was not a party to the federal lawsuits and therefore could not be cross-examined about the underlying bad acts, was overwhelming, and there was no significant probability that the jury would have acquitted if defendant had been permitted to impeach Zambrano (see generally People v Kello, 96 NY2d 740, 744 [2001]; People v Crimmins, 36 NY2d 230, 240-241 [1975]).

As for the second trial, where defendant was convicted of criminal sale of a controlled substance in the third degree, his argument about cross-examination of the police witnesses was not raised before the trial court and was therefore not preserved (see People v Malizia, 62 NY2d 755, 757-758 [1984]). People v Finch (23 NY3d 408 [2014]), cited by defendant, is inapposite. Defendant was required to make his evidentiary arguments in the specific context of the retrial to alert the trial judge to his proposed line of questioning (see People v Evans, 94 NY2d 499, 505 [2000]).

We have considered defendant’s remaining contention and conclude that it lacks merit.

III.

People v Ingram

Defendant was convicted of criminal possession of a weapon in the second degree (see Penal Law § 265.03). To summarize the People’s case, a Bronx Narcotics Field Team had been conducting a buy-and-bust operation during the early morning hours of September 29, 2008. The team members were Sergeant Deevy and Detectives Schaffer, Sanchez, Perpall, Roman, Batista and Howell. The team had already arrested four people and sent their undercover officer home. Still remaining in the area, Deevy and Schaffer saw defendant running full speed while holding a large bulge at his waistband. Defendant kept looking back while he was running. Schaffer, who was driving, pulled their unmarked van up next to him, and Deevy displayed his shield and told defendant not to move. Defendant ran back in the direction from which he came, so Deevy got out of the van and chased him while Schaffer followed in the van. Deevy ran in between two parked cars to intercept defendant, and defendant pulled out a gun and fired at Deevy. Deevy fired back. Neither one was shot. Schaffer ran up, grabbed the gun out of defendant’s hand and threw the gun approximately five feet away. A struggle ensued involving Deevy, Schaffer and defendant.

In the meantime, Officers Sanchez and Perpall had received a call from Deevy or Schaffer on the radio saying that a person was running southbound on Vyse Avenue, so they drove to that location. As they turned left on Vyse Avenue, they heard two gunshots. They eventually saw Deevy and Schaffer on the ground on top of defendant, and Sanchez saw a gun on the ground by their feet, picked it up, and unloaded it in his hand. It was a .38 caliber revolver that had four live bullets and one spent casing. Sanchez handed the gun and the ammunition to Batista, a member of the team, who brought them to the precinct. The ammunition was tested for fingerprints but none were found. While a DNA test and a fingerprint test on the weapon were ordered, they were never performed.

The defense theory of the case was that these officers were “rogue cops” and that because Deevy had fired his weapon for no good reason, the officers fabricated evidence and concocted a false story about the defendant shooting at Deevy in order to protect Deevy. On the first day of trial, the defense attempted to question Detective Sanchez regarding a lawsuit in which he and the rest of the narcotics field team involved in this case were sued in federal court for civil rights violations by a plaintiff named Marcus Reyes. After Reyes had been arrested by this narcotics field team and the criminal charges against him were dismissed, Reyes brought a civil rights lawsuit in 2010 against the narcotics field team alleging that they fabricated evidence, falsely arrested him, used excessive force, and illegally strip-searched him. During cross-examination, defense counsel asked Sanchez if he had ever been sued. The prosecutor objected on the grounds that being sued was “evidence of nothing,” and the court sustained the objection. There were several colloquies on different days of the trial in which this line of cross-examination was discussed. Defense counsel argued that the entire narcotics team was the subject of a 2010 lawsuit and the allegations of that lawsuit involving false arrest, excessive force, illegal strip search, and fabricated evidence went directly to her theory of the case that these were “rogue cops.” Later in the trial, counsel renewed her request to cross-examine about the allegations in the lawsuit, this time with respect to Detective Deevy. The trial court again denied the application, stating, “It’s a pending lawsuit. I’m not going to allow any inquiry into that. I find the prejudicial effect far outweighs the probative value at this stage, since it is a pending lawsuit.”

The Appellate Division affirmed, finding no record support for defendant’s assertion that the trial court had prevented him from asking the witness about relevant alleged bad acts underlying the lawsuit, rather than the existence of the suit itself. The Appellate Division likewise declared that the record indicated no good faith basis for the proposed line of questioning (125 AD3d 558 [1st Dept 2015]). A Judge of this Court granted leave (26 NY3d 930 [2015]).

We disagree with the Appellate Division. The record reveals that during the sidebar conferences, which followed the Judge’s initial ruling sustaining the People’s objection, defendant’s trial counsel clearly indicated that she was interested in getting to the allegations of specific facts underlying the federal lawsuit. She referred the court to the cases of People v Santos (306 AD2d 197, 198 [1st Dept 2003], affd 1 NY3d 548 [2003]) and People v Marzed (161 Mise 2d 309 [1993]) which related to prior bad acts of law enforcement witnesses. Based on defense counsel’s arguments and her citation to these cases, it is evident that counsel sought to cross-examine the People’s witnesses about the specific prior bad acts underlying the lawsuits filed against them for impeachment purposes.

Equally erroneous was the related component of the Appellate Division’s determination of the propriety of the proposed cross-examination. Specific allegations of prior bad acts in a federal lawsuit against a particular witness do establish a good faith basis for cross-examining that witness about the misconduct. Because defendant had the necessary good faith basis to ask about the prior bad acts alleged in the complaint, and there was no danger that such cross-examination would go to anything other than the police officers’ credibility, the trial court abused its discretion in not allowing cross-examination into the acts alleged in the federal lawsuit based on the reasoning that the prejudicial value outweighed the probative value merely because the lawsuit was still pending. While we recognize that the scope of cross-examination rests in the sound discretion of the trial judge (see Gissendanner, 48 NY2d at 548), in this case, it was an abuse of discretion to restrict defendant’s right to cross-examine key prosecution witnesses based on a finding that some unidentified prejudice outweighed the probative value of the questions. The questions had a good faith basis and there is no suggestion in this record that the main issues would have been obscured and the jury confused (compare People v Harrell, 209 AD2d 160 [1994], affd 86 NY2d 806 [1995]).

The error was not harmless. The evidence of defendant’s guilt of criminal possession of a weapon in the second degree hinged on the testimony of Deevy and Schaffer, who said that defendant had possessed a gun. Sanchez testified that when he and Perpall arrived, the gun was on the ground. The gun was not connected to defendant by any forensic evidence. Defendant was not permitted to cross-examine those witnesses regarding the acts underlying the federal lawsuit, which would have been relevant to the officers’ credibility. The proof of defendant’s guilt was not overwhelming and we cannot say that there was no significant probability that the jury would have acquitted if defendant had been permitted to impeach these witnesses.

IV.

People v McGhee

Defendant was convicted of 10 counts of criminal sale of a controlled substance in the third degree (see Penal Law § 220.39 [1]). In short, the People’s case was that as part of a long-term investigation into drug trafficking and other criminal activity at a housing project in Manhattan, multiple undercover detectives purchased crack cocaine from defendant over an extended period of time. Detective Rivera was the lead detective on the investigation. He testified that his duties included coordinating the investigation operations generally, processing the paper work, and handling the arrest which ended the investigation. Rivera explained that four undercover officers were assigned to make purchases at various points during the investigation.

Prior to commencement of the trial, defense counsel stated that he wanted to question Rivera about allegations that he “arrested people who committed no crimes, essentially false arrest allegations” against him and other officers in three lawsuits. He explained to the trial court that he wanted to ask Rivera questions regarding prior bad and immoral acts, and that the basis for the questions arose out of lawsuits that had been filed with Rivera as a named defendant along with other officers in the New York City Police Department. Counsel clarified that he did not intend to ask Rivera whether he was subject to the suit itself because he understood that generally that would be irrevelant; however, he believed that the existence of the lawsuits gave him a good faith basis to ask whether or not Rivera was involved in the arrest of the named federal plaintiff, if such an arrest took place and “is it, in fact, that those plaintiffs committed no crimes and he participated in a false arrest.” Counsel further explained that most of the questions would go to “the heart of the defense” — namely, that in three lawsuits there were allegations that the officers arrested people who committed no crimes.

The court denied the application, explaining the basis of its decision to prevent the proposed questioning with reference to relevance and good faith basis. The Appellate Division affirmed, concluding that defendant “failed to establish a good faith basis for eliciting the underlying facts of these lawsuits under the theory that they involved prior bad acts by this detective bearing on his credibility” and that any error was harmless (125 AD3d 537, 538 [1st Dept 2015]). A Judge of this Court granted leave (26 NY3d 968 [2015]).

Contrary to the Appellate Division’s conclusion, defense counsel had a good faith basis to ask Detective Rivera about the prior false arrests based upon the specific allegations of the federal lawsuit. And, participation in a false arrest was relevant to the jury’s assessment of the witness’s credibility. Given the clearly permissible parameters of the cross-examination as set forth by defense counsel, the trial court abused its discretion in prohibiting this proper line of questioning.

The error in precluding this line of questioning, though, was harmless. Overwhelming proof of guilt was provided by the identification testimony of the four different undercover officers who collectively transacted all 10 of the charged sales. Detective Rivera merely supervised the undercover officers and gave an overview of the long-term investigation into defendant’s drug dealing. Furthermore, there was no significant probability that the jury would have acquitted defendant had he been permitted to cross-examine Rivera about prior false arrests.

Finally, defendant’s arguments regarding the photo array used to identify him by one of the undercover officers and the impropriety of his sentence lack merit. There is record support for the suppression court’s determination of mixed law and fact that the photo array was not unduly suggestive and was fairly constituted (see People v Holley, 26 NY3d 514, 524 [2015]). On the sentencing issue, defendant was sentenced pursuant to Penal Law § 70.70 (4) as a second felony drug offender whose prior conviction was a violent felony, based upon a 2003 conviction for criminal possession of a weapon in the third degree under former Penal Law § 265.02 (4). He argues that because his prior conviction was no longer listed as a violent felony in Penal Law § 70.02 (1) when he was sentenced for the 10 sales in this case, his enhanced sentence was unlawful. However, not only was third-degree weapon possession under former Penal Law § 265.02 (4) classified as a violent felony when defendant incurred that conviction, but the same crime was later reclassified as the more serious offense of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [3]), and was listed as a violent felony offense when defendant was sentenced in this case. This is in contrast to People v Morse (62 NY2d 205 [1984]), upon which defendant relies, where the predicate crime was not classified as a violent felony offense when committed, but was subsequently so classified.

Accordingly, the order of the Appellate Division in People v Smith should be affirmed; the order of the Appellate Division in People v Ingram should be reversed and a new trial ordered; and the order of the Appellate Division in People v McGhee should be affirmed.

In People v Smith and People v McGhee: Order affirmed.

Opinion by Judge Abdus-Salaam. Chief Judge DiFiore and Judges Pigott, Rivera, Stein, Fahey and Garcia concur.

In People v Ingram: Order reversed and a new trial ordered.

Opinion by Judge Abdus-Salaam. Chief Judge DiFiore and Judges Pigott, Rivera, Stein, Fahey and Garcia concur.

      . The fact that a lawsuit has been commenced — like the fact of an arrest — has little to no probative value with regard to the officer’s credibility (see People v Miller, 91 NY2d 372, 380 [1998]; People v Rodriguez, 38 NY2d 95, 101 [1975]; People v Morrison, 194 NY 175, 178 [1909]).

      . We note that defense counsel was not required to make a proffer prior to trial, but could have chosen simply to question the detectives on cross-examination, and then upon any objection by the People, make a showing of relevance and good faith.

      . We reject defendant’s argument that the Appellate Division violated the rule set forth in People v Concepcion (17 NY3d 192 [2011]) and People v LaFontaine (92 NY2d 470 [1998]) by improperly affirming on the ground that there was no good faith basis (see Garrett, 23 NY3d at 885 n 2).


source: Caselaw Access Project

author: Pigott, J. Abdus-Salaam, J.

license: Public Domain

text:
    [57 NE3d 1067, 37 NYS3d 30]
    Wally G., an Infant, by His Mother and Natural Guardian, Yoselin T., Appellant, v New York City Health and Hospitals Corporation (Metropolitan Hospital), Respondent.
    Argued May 5, 2016;
    decided June 9, 2016

      The Fitzgerald Law Firm, P.C., Yonkers (John M. Daly, John J. Leen, Mitchell L. Gittin and Christopher J. Lennon of counsel), for appellant.

      Zachary W. Carter, Corporation Counsel, New York City {Marta Ross, Richard Dearing, Cecelia Chang, Scott Shorr and Michael Gudzy of counsel), for respondent.

      John A. Mancini, New York State Conference of Mayors and Municipal Officials, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.
   OPINION OF THE COURT

Pigott, J.

The issue on this appeal is whether the Appellate Division abused its discretion in affirming Supreme Court’s denial of plaintiff’s motion for leave to serve a late notice of claim on defendant New York City Health and Hospitals Corp. (HHC). We hold that it did not.

General Municipal Law § 50-e (1) (a) requires that a notice of claim be served on a public corporation “within ninety days after the claim arises.” In medical malpractice actions, “the cause of action accrues on the date when the alleged original negligent act or omission occurred” (Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295 [1998] [citation omitted]).

A party seeking leave to serve a late notice of claim must make an application to the court for that relief, and the court, in its discretion, may extend the party’s time to serve a late notice (see General Municipal Law § 50-e [5]). In making that determination, among other things, “the court shall consider, in particular, whether the public corporation . . . acquired actual knowledge of the essential facts constituting the claim within [90 days] or within a reasonable time thereafter.” Because the decision to grant or deny an application for an extension under section 50-e (5) is “purely a discretionary one” (Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256, 265 [1980]), our review is limited to whether the Appellate Division abused its discretion in making such a determination (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 539 [2006], citing Matter of Murray v City of New York, 30 NY2d 113, 119 [1972]; see also Pearson v New York City Health & Hosps. Corp. [Harlem Hosp. Ctr.], 10 NY3d 852, 854 [2008]).

Plaintiff was born prematurely by emergency cesarean section on June 15, 2005. He was transferred to the neonatal intensive care unit and discharged in stable condition on August 10, 2005.

On January 16, 2007, more than 90 days after the claim arose, without first obtaining leave of court as required by General Municipal Law § 50-e (5), plaintiff, by his mother and natural guardian, served a notice of claim against HHC alleging negligence and malpractice arising out of, among other things, HHC’s failure to properly treat and manage his mother’s prenatal care up until the date of plaintiff’s delivery, and its failure to obtain informed consent with regard to plaintiff’s neonatal and pediatric care. It was claimed that plaintiff sustained brain damage, cognitive defects, developmental, speech and psychomotor delays, fetal and respiratory distress and seizure disorder as a result of such negligence and malpractice.

Plaintiff then brought suit against HHC in August 2008, but waited until December 2010, over five years after the claim arose, to move for permission to serve a late notice of claim. In support of that motion, plaintiff submitted voluminous medical records along with affidavits from medical experts who, based on those records, opined that HHC’s deviations from the standard of care resulted in plaintiff’s injuries.

HHC cross-moved to dismiss the complaint on the ground that plaintiff failed to comply with General Municipal Law § 50-e (5). Supreme Court denied plaintiff’s motion and granted HHC’s cross motion (2012 NY Slip Op 30190[U] [Sup Ct, NY County 2012]).

A divided Appellate Division affirmed. The majority found unreasonable the excuse by plaintiff’s counsel “that he waited to make the motion [for leave to serve a late notice of claim] until approximately three years and ten months after filing the untimely notice of claim because he needed to receive the medical records from HHC” (120 AD3d 1082, 1083 [1st Dept 2014] [citation omitted]). It also held that plaintiff failed to establish “that the medical records put HHC on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia or that he would subsequently develop other deficits, delays, and disorders” (id.). The dissenters, relying on our decision in Williams, asserted that HHC’s hospital chart “demonstrate [d] that HHC had actual notice of the essential facts constituting the claim within 90 days of accrual or a reasonable time thereafter,” stating that such records “merely need to suggest injury attributable to malpractice” (120 AD3d at 1093). In the dissent’s view, the affidavits of plaintiff’s experts established that HHC’s “delay in performing an emergency cesarean section and in providing immediate ventilation through intubation, and its discussion of subsequent neurological sequelae with the parents after the diagnosis of the grade III [intraventricular hemorrhage], while not dispositive, suggested] injury attributable to medical malpractice” (id. [emphasis supplied]).

Plaintiff appealed to this Court as of right pursuant to CPLR 5601 (a), and we now affirm.

The affidavits submitted by plaintiff’s experts simply interpreted the medical records and posited that HHC could have engaged in alternative courses of treatment which, in their view, would have produced different results, and that plaintiffs health complications could have been avoided had HHC taken a different approach. However, mere assertions that a different course of treatment could have been followed do not address whether HHC had actual knowledge of the essential facts necessary to properly defend itself in the underlying action. On this record, it cannot be said that the lower courts abused their discretion in denying service of a late notice of claim.

In Williams, we held that section 50-e (5)’s actual knowledge requirement “contemplates ‘actual knowledge of the essential facts constituting the claim,’ not knowledge of a specific legal theory” (Williams, 6 NY3d at 537). A medical provider’s mere possession or creation of medical records does not ipso facto establish that it had “actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process” (id. [emphasis supplied]).

Contrary to plaintiff’s argument and the rationale of the dissent below, the medical records must do more than “suggest” that an injury occurred as a result of malpractice. That argument implies that so long as medical experts reasonably disagree as to whether, based on their respective interpretations of the medical records, the medical staff deviated from the standard of care, a factual question is present and an application for service of late notice must be granted as a matter of law. While we stated in Williams that there was “little to suggest injury attributable to malpractice” in that particular case, our use of the word “suggest” was not intended to deviate from our holding in that case that the medical records must “evince that the medical staff, by its acts or omissions, inflicted an[ ] injury on plaintiff” in order for the medical provider to have actual knowledge of the essential facts (Williams, 6 NY3d at 537).

For purposes of determining whether leave to serve a late notice of claim should be granted, determinations concerning a medical provider’s “actual knowledge” and whether the medical records “evince” that the medical provider inflicted injury on the plaintiff rest in the sound discretion of the court. Our review is thus limited to whether there was an abuse of discretion in denying service of late notice. We discern no such abuse of discretion.

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

Abdus-Salaam, J.

(dissenting). Because I believe that the courts below abused their discretion in holding that infant plaintiff Wally G.’s hospital records did not provide defendant New York City Health and Hospitals Corporation (HHC) with actual knowledge of injury attributable to its potential malpractice, I dissent.

Wally — who suffers from a range of neurological and cognitive deficits and disorders, including cerebral palsy, seizures, and speech defects — served, through his mother, a late notice of claim on HHC, without leave of court, alleging that HHC failed to timely and properly treat fetal distress and deliver him. At issue in this case is whether the courts below abused their discretion in denying Wally’s motion for an order deeming the previously-filed notice of claim timely nunc pro tunc or, in the alternative, granting him permission to file a late notice of claim. Wally asserts that his motion should have been granted because HHC’s medical records supplied it with actual knowledge of the essential facts constituting his present claim and therefore HHC would not be prejudiced by permitting the late filing. The majority concludes that the courts below did not abuse their discretion in denying Wally’s motion because his medical records did not provide HHC with actual knowledge of the facts underlying his claim. That conclusion, however, is belied by the record in this case.

General Municipal Law § 50-e requires that a notice of claim be served on a municipal defendant in a tort action within 90 days of accrual. Where a plaintiff fails to comply with the time limit under the statute, courts may in their discretion extend the time to serve the notice of claim (see General Municipal Law § 50-e [5]). In determining an application to serve a late notice of claim, the court must weigh “all . . . relevant facts and circumstances,” including, as relevant here, “whether the [defendant] . . . acquired actual knowledge of the essential facts constituting the claim within the time specified [in General Municipal Law § 50-e (1) (a)] or within a reasonable time thereafter” (id.). Additionally, the court may also consider the plaintiff’s infancy and whether service of a late notice of claim would “substantially prejudice” the defendant (id.; see generally Williams v Nassau County Med. Ctr., 6 NY3d 531, 535 [2006]). Courts of this state have recognized that General Municipal Law § 50-e “is not intended to operate as a device to frustrate the rights of individuals with legitimate claims” (Matter of Porcaro v City of New York, 20 AD3d 357, 357-359 [1st Dept 2005]) and because of its remedial nature, it should be liberally construed (see id.) Matter of Ruperti v Lake Luzerne Cent. School Dist., 208 AD2d 1146, 1147 [3d Dept 1994]; Robb v New York City Hous. Auth., 71 AD2d 1000, 1001 [2d Dept 1979]; Matter of Kaiser v Town of Salina, 20 AD2d 312, 314 [4th Dept 1964]; see also Adkins v City of New York, 43 NY2d 346, 350 [1977]).

In Williams v Nassau County Med. Ctr. (6 NY3d 531 [2006]), we addressed our standard for determining when the filing of a late notice of claim based on actual knowledge of the essential facts should be permitted. We held that

“[m]erely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process.
“The relevant inquiry is whether the hospital had actual knowledge of the facts — as opposed to the legal theory — underlying the claim” (id. at 537).

In Williams, the mother had a difficult delivery. Nassau County Medical Center employees gave the mother Pitocin, a drug used to facilitate birth. Thereafter the medical staff attempted twice to deliver the child through vacuum extraction, but ultimately had to use forceps which resulted in breaking the child’s clavicle. The hospital records indicated that the mother’s pelvis was adequate in size to accommodate the child’s head, and otherwise noted that the delivery was without complication. The child complained that his epilepsy and developmental disabilities were the result of the hospital’s negligence during his birth. We affirmed the denial of a motion to file a late notice of claim because, although the hospital records evinced a difficult delivery, “there was scant reason to identify or predict any lasting harm to the child” (id.). We stated that “[w]here, as here, there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim” (id.).

As stated by the majority, our holding in Williams requires that the hospital records evince actual knowledge that the medical staff, by its acts or omissions, inflicted injury on the plaintiff. However, contrary to the majority’s conclusion, under that standard, the medical records submitted by Wally in support of his motion to file a late notice of claim demonstrate that HHC had actual knowledge of the facts underlying Wally’s claim.

Wally’s medical records demonstrate that mother’s delivery was particularly complicated, leaving Wally with a number of defects, and as a result, the hospital could predict lasting harm to Wally. In particular, the records show that Wally was born premature, in the seventh month of gestation. Prior to his birth, Wally’s mother — a diabetic with a history of a prior miscarriage and a prior premature birth at 29 weeks — presented at HHC’s Metropolitan Hospital on numerous occasions complaining of vaginal bleeding and blood clots. Following multiple discharges, mother was ultimately diagnosed with possible chronic placental abruption but, nonetheless, she was again discharged from the hospital and instructed to follow up with the clinic. Thereafter, mother returned to Metropolitan, stating that she continued to experience vaginal bleeding and also passed blood clots. Her condition worsened while in the hospital, demonstrating “symptom[s] of chorioamnionitis.” An attending doctor’s note states that at one point the fetal heart rate was in the tachycardiac range, indicating an abnormal increase in the heart rate. The hospital staff determined that mother should deliver by cesarean section, and indicated in the preoperative notes that mother in fact had a placental abruption with active bleeding.

Immediately following his birth, Wally was transferred to the neonatal intensive care unit. According to the obstetrical chart, Wally’s Apgar score was five at one minute after birth and seven at five minutes. Wally was unable to breathe on his own after birth, but was not immediately intubated. He was eventually placed on a mechanical ventilator; however, he was already experiencing hypoxia, or lack of oxygen. Wally’s hospital records also indicate that he suffered a grade III in-traventricular hemorrhage (IVH). Based on this injury, an attending spoke with Wally’s parents about the possibility of brain damage and referred Wally to the developmental clinic and early intervention programs. Wally’s medical records also indicate that five months following his discharge from the hospital, his mother brought him back complaining of seizure activities.

As recounted by the three expert affirmations Wally submitted in support of his motion, the hospital records show that HHC departed from good and accepted medical practice which proximately caused Wally’s neurological deficits. In particular, the experts opined that mother was not prescribed the proper course of antibiotics during her earlier visits to the hospital, that Wally should have been delivered by cesarean section sooner, and that he should have been immediately intubated following birth, the failure of which likely caused his IVH. Under these circumstances, it is difficult to understand how HHC could deny having actual knowledge of the facts underlying Wally’s claims.

The majority’s conclusory assertion that the records, expert testimony, and other facts “do not address whether HHC had actual knowledge of the essential facts necessary to properly defend itself in the underlying action” (majority op at 677) turns a blind eye to the wealth of record evidence demonstrating HHC’s actual knowledge. All of the facts relied upon by Wally to support his claims of medical malpractice are in HHC’s medical records, which satisfies the relevant inquiry we established in Williams — namely, “whether the hospital had actual knowledge of the facts — as opposed to the legal theory— underlying the claim” (6 NY3d at 537). To review, Wally’s medical records establish that mother experienced a difficult pregnancy and was at risk of premature delivery. Mother was repeatedly discharged from the hospital despite the recurrence of vaginal bleeding. Although a placental abruption had been ruled out, it was ultimately determined that mother did in fact have a placental abruption which contributed to the vaginal bleeding she experienced. The records show that mother had chorioamnionitis and Wally experienced fetal tachycardia and hypoxia, which his experts affirm was a result of the hospital’s negligence in failing to timely deliver him by cesarean section and the failure to immediately intubate him following his birth. One of Wally’s experts claims that this failure likely caused his severe IVH.

Most compelling is the discussion between the hospital’s medical staff and Wally’s parents concerning the risk of brain damage after Wally suffered the IVH. This clearly indicates that the hospital was aware that the conditions under which Wally was born could have lasting effects. Furthermore, Wally returned to the hospital with seizure activity a mere five months after being discharged. This visit certainly put HHC on notice that Wally was potentially injured. Although Wally may have been discharged from the hospital “in stable condition” (majority op at 675), as is normally the case, there is clear evidence in his medical records that Wally would suffer lasting harm due to injuries resulting from his birth. Thus, it is not surprising that Supreme Court noted that if a motion were made on summary judgment grounds, the motion would be denied, and it is equally unsurprising that two Justices of the Appellate Division dissented.

HHC’s experts dispute Wally’s claims, contending that IVH, as well as his other injuries, are common corollaries to premature delivery. However, those issues, which are relevant to the merits of the underlying malpractice claim, must be distinguished from the conceptually separate legal question of whether the medical records put HHC on actual notice that its staff may have harmed Wally.

Because Wally’s medical records provided HHC with actual knowledge, Wally’s delay in filing a late notice of claim did not prejudice HHC. That notice, although late and improperly served without leave of court, clearly put HHC on notice of Wally’s legal claims, allowing it to commence its investigation. Our primary concern at this juncture is whether HHC’s records provided it with actual knowledge of the facts underlying the claim, not the viability of that claim. Because General Municipal Law § 50-e is to be liberally construed and not present a barrier to a legitimate claim, I conclude that the courts below abused their discretion by denying Wally’s motion to file a late notice of claim.

Chief Judge DiFiore and Judges Stein and Garcia concur; Judge Abdus-Salaam dissents in an opinion in which Judges Rivera and Fahey concur.

Order affirmed, with costs.

      . Section 50-e (5) additionally states that there are “other relevant facts and circumstances” that the court must also consider in making its determination whether late service should be permitted.

      . With one exception not relevant here, the notice of claim is “an element of the substantive cause of action and as such its satisfaction must be pleaded in the complaint” (Siegel, NY Prac § 32 [5th ed]). Plaintiff’s complaint is not included in this record, thus raising an additional question whether plaintiff satisfied this condition precedent to bring suit.

      . Supreme Court granted plaintiff’s motion for reargument, and, upon reargument, adhered to its prior determination.

      . Chorioamnionitis is an infection of the placental membrane which compromises the ability of the placenta to supply oxygen to the fetus.

      . An Apgar score is used to evaluate the condition of a newborn infant. The range is from zero to 10, with 10 being a perfect score.


author: Chief Judge DiFiore. Rivera, J.

text:
    [57 NE3d 1076, 37 NYS3d 39]
    The People of the State of New York, Respondent, v Dennis J. Sincerbeaux, Appellant.
    Argued June 1, 2016;
    decided June 28, 2016

      Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), and James S. Kernan, Public Defender, for appellant.

      Richard M. Healy, District Attorney, Lyons (Bruce A. Rosekrans of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

In this Sex Offender Registration Act (SORA) (Correction Law art 6-C) appeal, we are asked to decide whether the SORA court erred in assessing defendant points under risk factors 1, 5, and 9 and abused its discretion in adjudicating defendant a risk level three sex offender. We conclude that the court did not err and did not abuse its discretion.

I.

Defendant was convicted on his plea of guilty of incest in the third degree (Penal Law § 255.25) for engaging in sexual intercourse with a person he knew to be related to him over a period of approximately one month in 2007. He was sentenced to six months’ incarceration followed by 10 years’ probation.

Prior to defendant’s release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (RAI) and assessed defendant 115 points, making him a presumptive risk level three. The Board recommended that defendant be classified as level three, concluding that a departure from the presumptive risk level was not warranted. As relevant here, the Board assessed 10 points under risk factor 1 for use of forcible compulsion in the current incest offense, 20 points under risk factor 5 for the age of the victim being less than 16 in the current incest offense, and 30 points under risk factor 9 for a prior endangering the welfare of a child conviction under Penal Law § 260.10.

At the SORA hearing, defendant argued that it would be inappropriate for the court to assess a collective 30 points under risk factors 1 and 5 for forcible compulsion and age of the victim in the current incest offense. Defendant argued that these points were unwarranted because they were based on the allegations of the victim and were not charged offenses. Defendant also argued that he should only be assessed five points for his prior endangering the welfare of a child conviction under risk factor 9, and not 30 points as the Board had recommended, because it was a misdemeanor that was not sexual in nature. Defendant argued that if the 25 points he claimed were overas-sessed under risk factor 9 were subtracted, defendant would have received a score of 90 and been designated a level two sex offender. Additionally, defendant argued that without those 25 points under risk factor 9 and 30 points under risk factors 1 and 5, he would have received a score of 60 and been classified a level one offender.

The People "vigorously oppose [d]” defendant’s request to be adjudicated a level one sex offender. The People, relying on the victim’s statements, argued that clear and convincing evidence had been presented to support the assessment of points for forcible compulsion and age of the victim under risk factors 1 and 5, respectively. The People further argued that it was appropriate for the court to consider allegations made by the victim of uncharged crimes such as these. As to defendant’s requested point reduction related to the prior endangering the welfare of a child conviction under risk factor 9, the People argued that even if the court granted defendant’s request, which would bring his points from 115 to 90 making him a presumptive risk level two, an upward departure to level three would be warranted given the victim’s allegations of “numerous occasions of forcible sexual intercourse.”

The SORA court agreed with the Board and the People and assessed defendant a total of 115 points, a presumptive risk level three. The court in its written decision made factual findings related to the risk factors defendant now challenges: that defendant had a prior endangering the welfare of a child conviction for an offense that involved an assault on his son and was not sexual in nature, that the sexual contact between the victim and defendant involved the use of forcible compulsion, and that the victim was less than 16 when she was first subjected to sexual contact with defendant. The court also found that the sexual contact between the victim and defendant involved multiple acts of sexual intercourse, that the sexual contact between the victim and defendant constituted a continuous course of conduct that covered a period of many years, and that defendant had not accepted responsibility for his conduct. Based on its factual findings, the court declined to downwardly depart, finding that “a departure from the presumptive Risk Level 3 is not appropriate.”

The Appellate Division affirmed and found record support for the SORA court to assess defendant points under risk factors 1 and 5 for forcible compulsion and age of the victim in relation to the current incest offense because the People had “presented ‘reliable hearsay evidence, in the form of the victim’s statement’ ” (121 AD3d 1577, 1577 [4th Dept 2014] [citation omitted]). The Appellate Division further held that the SORA court did not abuse its discretion in assessing defendant 30 points under risk factor 9 for the prior endangering the welfare of a child conviction and classifying him a level three sex offender.

This Court granted defendant leave to appeal (24 NY3d 915 [2015]), and we now affirm.

II.

Correction Law § 168-n (3) requires the People to prove facts to support defendant’s SORA risk-level classification by clear and convincing evidence. As relevant here, the SORA Risk Assessment Guidelines and Commentary make clear that, when assessing points related to the current offense, the court is not limited to considering defendant’s current conviction — here, incest in the third degree. The court may also assess points for clear and convincing evidence of other criminal acts presented in admissions from the offender, statements from victims, and reports from probation officers, parole officers, corrections counselors, or other reliable sources (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006] [hereinafter Guidelines]). Moreover, we have held that sworn statements constitute reliable hearsay evidence admissible in SORA proceedings to determine the defendant’s risk level, and that even unsworn statements of the victim are admissible if there is a requisite indicia of reliability (see People v Mingo, 12 NY3d 563, 567, 573, 576-577 [2009]).

In relation to his current offense, the SORA court properly assessed defendant 10 points under risk factor 1 for use of forcible compulsion and 20 points under risk factor 5 for the age of the victim being less than 16. Neither force nor age is an element of defendant’s current incest conviction (see Penal Law § 255.25). However, the record contains clear and convincing evidence supporting the assignment of points for both of these risk factors in the form of a sworn statement from the victim. Although victims’ statements may be considered even if unsworn, here, the victim’s sworn statement complies with the requirements for such statements set forth in Penal Law § 210.45 (see People v Sullivan, 56 NY2d 378, 380 [1982]). With respect to forcible compulsion, in the sworn statement the victim declared that defendant would take her out of her bedroom and force her to have sexual intercourse with him. She averred that when she refused defendant would “hit” or “throw” her, noting that she had received black eyes from his blows and had a scar on her right knee from a time defendant threw her to the ground. With respect to her age being less than 16, in the sworn statement the victim maintained that defendant first started forcing her to have sexual intercourse with him when she was 13 years old. Therefore, under the Guidelines and Mingo it was not error for the SORA court to assess points under risk factor 1 for forcible compulsion and risk factor 5 for the age of the victim being less than 16.

In relation to the assessment of points for defendant’s criminal history under risk factor 9, the Guidelines direct the SORA court to assess defendant 30 points for a prior “violent felony, a misdemeanor sex crime, or endangering the welfare of a child” (Guidelines, factor 9). Additionally, the Guidelines provide that

“[t]he Board decided to treat endangering the welfare of a child as if it were a sex crime because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition. Where a review of the record indicates that there was no such misconduct, a departure may be warranted” (Guidelines at 14 [emphasis added]).

Plainly, pursuant to these Guidelines the SORA court was required to assess 30 points for a prior endangering the welfare of a child conviction without regard to whether the underlying offense involved conduct that is sexual in nature, subject to the court’s authority to grant a downward departure in the exercise of its discretion. Here, there is no factual dispute that defendant had a prior endangering the welfare of a child conviction. Therefore, the SORA court’s assessment of 30 points under risk factor 9 was not in error. Thus, the only question of law that remains is whether, due to the nonsexual nature of defendant’s prior endangering conviction, the court abused its discretion in declining to downwardly depart from defendant’s presumptive risk level three.

As we recently stated, “[i]n determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted” (People v Howard, 27 NY3d 337, 341 [2016], citing People v Gillotti, 23 NY3d 841, 861 [2014]). Here, the only mitigating factor defendant presented to the SORA court was that the prior endangering the welfare of a child conviction was not sexual in nature. Although the SORA court considered this argument when deciding whether to downwardly depart, it certainly was not required to consider the mitigating factor in a vacuum without considering any aggravating factors that would weigh against a downward departure (see Guidelines at 4). In this case, there were numerous aggravating factors not adequately captured by the RAI that countered defendant’s argument for a downward departure. Therefore, the SORA court did not abuse its discretion in determining that the “totality of the circumstances” did not warrant a downward departure because such a departure would have resulted in an “under-assessment of the defendant’s dangerousness and risk of sexual recidivism” (People v Gillotti, 23 NY3d at 861).

The aggravating factors included defendant’s admission before the SORA court that the prior endangering the welfare of a child conviction arose from an allegation of “excessive corporal punishment . . . involving striking his son with some kind of a stick and leaving a bruise.” Moreover, an excerpt from the related child protective report contained in the record stated that defendant beat his son with a two-by-four, resulting in a physical injury of an approximately four-by-five-inch large purple bruise below the son’s buttocks. Additionally, as described above, the victim’s sworn statement indicated that she experienced years of physical abuse as a result of her attempts to refuse defendant’s sexual advances. Moreover, the victim averred in her statement that defendant forced her to have incestuous sexual intercourse with him seven to eight times per month starting two months after she moved in with him until the time she moved out, which was from when she was 13 years old until she was 28 years old. Thus, the victim declared that the sexual intercourse spanned a period of over 15 years. Defendant pleaded guilty to one month of incestuous intercourse and then admitted to probation in the presentence report to having said intercourse with the victim for a period spanning more than eight years, claiming self-servingly that the crimes began when the victim was 18 or 19 years old — a claim that was not credited by the SORA court. Lastly, the victim also reported that, at the time her first child was born, she had not had sexual intercourse with anyone except for defendant.

Defendant’s adjudicated risk level is meant to capture his risk of reoffense and danger to the community (see Guidelines at 2-3). Given the enormity of defendant’s uncharged sexual crimes, the facts of which were proved by clear and convincing evidence and not fully accounted for in the RAI, the SORA court did not abuse its discretion when it declined to downwardly depart from the presumptive risk level three. Defendant’s focus in isolation on his nonsexual prior endangering the welfare of a child conviction as a mitigating factor ignores that the violent nature of that prior offense and the gravity of the current incest offense are both probative of defendant’s risk of reoffense.

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

Rivera, J.

(dissenting). Defendant challenges his designation under New York’s Sex Offender Registration Act (SORA) (Correction Law art 6-C) as a level three risk to reoffend on the ground, among others, that County Court improperly accepted the Board’s risk assessment score of 30 points under factor 9 based on a prior conviction that did not involve sexual misconduct. At the SORA hearing defendant requested that his risk assessment reflect the nonsexual nature of his prior offense, which he correctly identified as a permissible ground for departure under the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (Guidelines). County Court abused its discretion when it denied this request without proper consideration of the ground presented. This error matters because if, as advocated by defendant, County Court had assigned him a lower risk level, he would be subject to somewhat less onerous SORA reporting requirements than a level three designation.

The Guidelines assign 30 points under risk factor 9 for a prior conviction or adjudication of endangering the welfare of a child, the offense at issue here, but only five points for a prior criminal history absent felony or sex crime convictions or adjudications (Guidelines, factor 9). The Board of Examiners of Sex Offenders (Board) in drafting the Guidelines

“decided to treat endangering the welfare of a child as if it were a sex crime because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition. Where a review of the record indicates that there was no such misconduct, a departure may be warranted” (id. at 14 [emphasis added]).

It is undisputed that defendant’s conviction for endangering the welfare of a child did not involve sexual misconduct. The question presented on this appeal is whether County Court properly considered defendant’s request to be assessed a lower risk because his offense lacked a sexual component. In support, defendant argued to County Court that his case fell squarely within the Guidelines and the Board’s explicit proposed grounds for departure. County Court stated, “[t]he fact that the [offense] . . . did not include conduct of a sexual nature, does not preclude its consideration by the Court pursuant to the guidelines.” This is an accurate statement of the Guidelines’ approach, but not responsive to defendant’s argument. Defendant did not contend that County Court was without authority to consider the conviction, only that the court should look to the underlying fact that the offense did not involve sexual misconduct, and then weigh that fact in its determination of whether the offense comported with crimes scored at 5 versus 30 points and a departure warranted on that basis, as provided by the Guidehnes.

Whether, as the majority concludes, defendant could be designated a level three offender based on his criminal history is of no moment to the issue on appeal because that determination should be made in the first instance by the SORA court (majority op at 689-690). In my view, the record cannot be read, as apparently the majority does, to establish that County Court gave proper consideration to the Guidelines’ instruction concerning factor 9 and defendant’s argument that his offense was nonsexual in nature. Therefore, I dissent and would reverse and remand for the court’s assessment of defendant’s risk level in light of the Guidelines and the facts of his case, and, if necessary, for a determination on the People’s request for an upward departure.

Judges Abdus-Salaam, Stein and Garcia concur; Judge Rivera dissents in an opinion in which Judge Pigott concurs; Judge Fahey taking no part.

Order affirmed, without costs.

      . With regard to defendant’s failure to accept responsibility, the pre-sentence report found that defendant “presented himself as a victim, demonstrated no remorse and accepted very little accountability for his actions.” Moreover, it found that defendant blamed the victim for his own conduct and denied that his sexual intercourse with the victim fell within the definition of “incest.”

      . Penal Law § 210.45 provides that
      “[a] person is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable.
      “Making a punishable false written statement is a class A misdemeanor.”

      . Defendant’s suggestion that the court should have arbitrarily assessed five points, instead of 30 points, under risk factor 9 is misguided, as it is in contravention of the Guidelines. A court may depart from the presumptive risk level, not from points that are properly assigned within a specific risk factor. Furthermore, the People’s apparent concession of error as to the alleged overassessment of points under risk factor 9 in their brief is not binding on this Court. The People never advanced this erroneous legal argument before the SORA court, nor did they raise it at the Appellate Division; accordingly, we need not consider this newfound argument in reviewing the question of law presented herein.

      . To the extent that defendant raises a constitutional due process challenge to the Guidelines on appeal, such argument is unpreserved.

      . Indeed, the allegations underlying the prior endangering conviction mirror the elements of the violent felony of assault in the second degree, which is assessed 30 points on the RAI (Penal Law §§ 70.02 [1] [c]; 120.05 [2]).

      . Contrary to the majority’s suggestion (majority op at 689 n 3), a departure by the court because of an overassessment of defendant’s risk under factor 9 would not have been arbitrary but, rather, based specifically on a mitigating factor expressly provided for in the Guidelines.

      . For example, while both level two and level three offenders are required to register for life, a level two offender who does not have a special designation has the opportunity to petition for relief from the registration requirement after 30 years (Correction Law §§ 168-0 [1]; 168-h [2]). A level three offender must verify the offender’s address, in person, every 90 days (Correction Law § 168-h [3]), and annually update the offender’s registry photograph, compared to every three years for level one and two offenders (Correction Law § 168-f [2] [b-2], [b-3]).

      . Defendant failed to preserve his constitutional and statutory challenge to the Board’s treatment of his endangering the welfare of a child conviction as if it was a sex crime. Thus, whether the Board may automatically assess 30 points under factor 9 without clear and convincing evidence of defendant’s sexual misconduct remains an open question. For purposes of my analysis, I assume, without deciding, that the Board may lawfully classify and score this offense in such a manner, while providing for a departure from the risk level.

      . Notably, the People take the position on this appeal that defendant should not have been assessed 30 points under factor 9. They request that the case be remanded to the SORÁ court to consider the People’s upward modification on the original hearing record or on a motion to reconsider defendant’s risk assessment based on his conduct after the SORA hearing.