text:
    [960 NE2d 383, 936 NYS2d 614]
    The People of the State of New York, Respondent, v Sebastian Delamota, Appellant.
    Argued October 11, 2011;
    decided November 17, 2011

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Andrew E. Abraham and Lynn W.L. Fahey of counsel), for appellant.
    I. In this one-witness identification case, a reasonable doubt exists, as a matter of law, as to whether appellant, a six feet, three inch, 170 pound, 19 year old with an injured and useless arm, was the robber the complainant initially described as a five feet, six inch, 140 pound man in his mid-20s, who was able to use both arms fully during the crime, especially since the original report to police was that the complainant did not see the robber’s face or know whether he was black or white, and virtually every aspect of the complainant’s testimony as to critical facts was contradicted by other evidence. (People v Reed, 40 NY2d 204; People v Santos, 38 NY2d 173; People v Ledwon, 153 NY 10; People v Calabria, 3 NY3d 80; Jackson v Virginia, 443 US 307; People v Foster, 64 NY2d 1144; People v Stewart, 40 NY2d 692; People v Logue, 35 NY2d 658; People v Sickles, 35 NY2d 792; People v Abelson, 309 NY 643.) II. Suppression of the complainant’s pretrial identification was required when the police allowed his son—who was appellant’s age, was from the same neighborhood, and had given the police appellant’s name—to act as his father’s Spanish interpreter at the photo array, and when the son admitted at trial that he had known appellant a long time. (United States v Wade, 388 US 218; People v Rodriguez, 79 NY2d 445; People v Chipp, 75 NY2d 327; People v Gonzalez, 145 AD2d 923; People v Jones, 108 AD2d 824; People v Mosley, 110 AD2d 937; People v Gaddy, 98 AD2d 729; People v Burts, 78 NY2d 20; People v Young, 35 AD3d 324; People v Truesdale, 299 AD2d 289.) III. Appellant was denied the effective assistance of counsel by his attorney’s failure to (a) protest inadmissible hearsay that appellant’s close friend “knew” appellant committed the crime, (b) appropriately object to an improper Dawson inquiry of a key defense witness, or (c) protect appellant from evidence that suggested appellant had a generally bad character and unsavory friends. (Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; People v Benevento, 91 NY2d 708; People v Bennett, 29 NY2d 462; Somerville v Conway, 281 F Supp 2d 515; Murray v Carrier, All US 478; People v Caban, 5 NY3d 143; People v Henry, 95 NY2d 563; People v Flores, 84 NY2d 184; People v Huertas, 75 NY2d 487.)

      Richard A. Brown, District Attorney, Kew Gardens (Daniel Bresnahan and John M. Castellano of counsel), for respondent.
    I. The evidence was legally sufficient to prove defendant’s guilt beyond a reasonable doubt. (People v Calabria, 3 NY3d 80; People v Jackson, 65 NY2d 265; People v Bleakley, 69 NY2d 490; People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Ford, 66 NY2d 428; People v Arroyo, 54 NY2d 567; People v Foster, 64 NY2d 1144; People v Reed, 40 NY2d 204; People v Ledwon, 153 NY 10.) II. The hearing court properly denied defendant’s motion to suppress the identification evidence, and the trial court properly declined to disturb the hearing court’s decision. (United States v Wade, 388 US 218; People v Collins, 60 NY2d 214; People v McBride, 14 NY3d 440; People v Chipp, 75 NY2d 327; People v Adams, 53 NY2d 241; People v Marie, 12 NY3d 583; People v Ortiz, 90 NY2d 533; People v Prochilo, 41 NY2d 759; People v Lee, 96 NY2d 157; People v Jackson, 98 NY2d 555.) III. Defendant received the effective assistance of counsel at trial. (People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Baker, 14 NY3d 266; People v Satterfield, 66 NY2d 796; People v Borrell, 12 NY3d 365; People v Turner, 5 NY3d 476; People v Henry, 95 NY2d 563; People v Flores, 84 NY2d 184; People v Caban, 5 NY3d 143; Strickland v Washington, 466 US 668.)
   OPINION OF THE COURT

Graffeo, J.

Over a century ago, People v Ledwon (153 NY 10 [1897]) established that a criminal conviction is not supported by legally sufficient evidence if the only evidence of guilt is supplied by a witness who offers inherently contradictory testimony about the defendant’s culpability. The victim in this case consistently told the jury that defendant was the person who robbed him but his testimony conflicted with the testimony of other witnesses. We hold that the limited rule of Ledwon does not govern on these facts and the proof at trial was sufficient to support defendant’s conviction despite the evidentiary discrepancies. Nevertheless, an unduly suggestive pretrial identification procedure entitles defendant to a new trial preceded by an independent source hearing.

I

On an evening in October 2006, Juan Hernandez was robbed at knife point in an elevator at his apartment building. Shortly after the incident, his son, Juan Jr., telephoned 911 and pretended to be his father. Juan Jr. gave the 911 operator a general description of the robber but some of his statements were not accurate because he had received little information from his father.

As a result of the 911 call, later that night Detective Bruce Koch spoke to Hernandez and his son. Juan Jr. translated for his father during the conversation. According to Detective Koch, Hernandez described the robber as a Hispanic man in his mid-20s who weighed approximately 140 pounds and was about the detective’s height—five feet, six inches. Hernandez also allegedly stated that the perpetrator held the knife in his right hand and took the stolen items with his left hand. The detective assembled various photographs of individuals from a police department database that matched this general description but Hernandez was not able to make an identification. Defendant Sebastian Delamota—who at the time of the robbery was 18 years old, six feet, three inches tall and had a functionally impaired left arm as a result of a previous gunshot injury—was not among the persons in the photographs shown to Hernandez.

Hernandez and his son met again with Detective Koch a few days after the robbery. Juan Jr. told the detective that, based on neighborhood gossip, he had been told that the perpetrator of his father’s robbery was “Sebastian” and that this individual had been shot earlier that year on Elmhurst Avenue. Detective Koch asked Juan Jr. if he knew Sebastian and he responded in the negative. After searching the police database, Detective Koch learned that defendant had been shot on Elmhurst Avenue in April 2006. The detective located defendant’s photo, assembled an array and showed it to Hernandez. With Juan Jr. translating, Hernandez chose defendant’s photograph as depicting the man who robbed him. Defendant was subsequently apprehended, placed in a lineup and identified by Hernandez, this time with a Spanish-speaking detective serving as the interpreter.

Defendant was indicted for first-degree robbery, third- and fourth-degree weapon possession and second-degree menacing. Defense counsel moved to suppress the identifications by Hernandez, arguing that Juan Jr.’s presence during the photo array caused the procedure to be unduly suggestive since there was a possibility that Juan Jr. knew defendant from the neighborhood before the array was conducted. The People responded that the identification could not have been suggestive because Juan Jr. told Detective Koch that he did not know defendant. Supreme Court determined that although it was “not the best practice” to use Juan Jr. as an interpreter for his father, there was no basis for suppression because the son “did not know Mr. Delamota from the neighborhood, did not know who Mr. Delamota was” during the photo array and, hence, the lineup was similarly untainted.

At the jury trial, Detective Koch testified about his recollection of Hernandez’s description of the robber, including Hernandez’s statement that the perpetrator held a knife in his right hand and used his left hand to take certain articles of property. When Hernandez testified, he recalled that the robber had been unable to raise his left arm above his waist. Hernandez claimed that Detective Koch’s recollection was mistaken and denied that he ever told the police that the robber had used both arms during the commission of the crime. Hernandez also provided various explanations for other inconsistencies in the proof, such as the perpetrator’s height and age and how much cash was stolen. In addition, the parties stipulated that Hernandez told a therapist the day after the robbery that he was mugged “by a man he recognized as visiting his apartment complex on various occasions,” which statement conflicted with Detective Koch’s testimony that Hernandez said he was not familiar with the attacker.

When Juan Jr. took the stand, he admitted that he had known defendant for “[a] long time” prior to the robbery and had been present when defendant was placed into an ambulance after being shot in April 2006. After this revelation, defense counsel moved to reopen the Wade hearing. Eventually, Supreme Court denied defendant’s motion, concluding that the suppression court would have reached the same result even if it had been aware that Juan Jr.—who acted as his father’s translator during the photo array procedure—had a preexisting familiarity with defendant.

At the conclusion of the People’s case and again at the close of all proof, defense counsel requested dismissal of the charges on the basis of insufficient evidence allegedly stemming from numerous discrepancies in the testimony of the witnesses. Supreme Court denied the motions and the jury found defendant guilty of first-degree robbery, third-degree weapon possession and second-degree menacing. Defendant was sentenced to 10 years in prison and five years of postrelease supervision.

The Appellate Division affirmed (74 AD3d 1225 [2d Dept 2010]), holding that Supreme Court did not improvidently exercise its discretion when it denied defendant’s motion to reopen the suppression hearing. The court further determined that the evidence was legally sufficient to establish defendant’s identity as the perpetrator of the robbery, the conviction was not against the weight of the evidence, Hernandez’s testimony was not incredible as a matter of law and defendant’s remaining contentions were meritless or unpreserved. A Judge of this Court granted defendant leave to appeal (15 NY3d 920 [2010]) and we now reverse.

II

Defendant contends that the People’s proof was legally insufficient to establish his guilt beyond a reasonable doubt. Relying on People v Ledwon (153 NY 10 [1897]) and its progeny, defendant asserts that there was no reasonable basis for the jury to convict him because there was contradictory testimony regarding the perpetrator’s appearance. The People argue that Led-won does not control here because the victim consistently testified at trial that defendant was the robber and any discrepancies with pretrial statements fell within the province of the jury to make credibility determinations that are unreviewable in the context of a sufficiency challenge.

A verdict is legally sufficient if there is any valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime has been proven beyond a reasonable doubt (see e.g. People v Smith, 6 NY3d 827, 828 [2006], cert denied 548 US 905 [2006], quoting People v Bleakley, 69 NY2d 490, 495 [1987]; People v Santi, 3 NY3d 234, 246 [2004]). The proof must be viewed in the light most favorable to the prosecution and the People are entitled to all reasonable evidentiary inferences (see e.g. People v Conway, 6 NY3d 869, 872 [2006]; People v Ford, 66 NY2d 428, 437 [1985]). In turn, the reviewing court is required “to marshal competent facts . . . and determine whether, as a matter of law, a jury could logically conclude that the People sustained [their] burden of proof’ (People v Danielson, 9 NY3d 342, 349 [2007]). Under this standard, a court could theoretically uphold a conviction that was premised on inherently contradictory testimony by a single witness because the jury could have accepted the testimony that supported the People and rejected that which did not.

Our Court recognized that such an outcome is unjust long before the modern formulation of the standard for sufficiency review was articulated (see e.g. Jackson v Virginia, 443 US 307, 316 [1979]; In re Winship, 397 US 358, 364 [1970]). In People v Ledwon (153 NY 10 [1897]), we reversed a murder conviction that was based on the conflicting trial testimony of the 12-year-old eyewitness who stated that: (1) he saw the victim commit suicide; (2) he observed the defendants kill the victim; and, lastly, (3) that he witnessed the victim commit suicide. We reasoned that the “ ‘hopeless contradictions’ ” in the boy’s testimony could not establish guilt beyond a reasonable doubt (id. at 22; see also People v Calabria, 3 NY3d 80, 82 [2004]).

Beginning in the 1970s, we emphasized that Ledwon applies in rare cases where the charged crime is established by only one witness who provides inherently contradictory testimony at trial (see e.g. People v Reed, 40 NY2d 204, 208-209 [1976]; People v Stewart, 40 NY2d 692, 699 [1976]; People v Jackson, 65 NY2d 265, 272 [1985] [the rule covers instances where “all of the evidence of guilt comes from a single prosecution witness who gives irreconcilable testimony pointing both to guilt and innocence”]). In such an instance, the witness is deemed to be “incredible or unreliable as a matter of law” (People v Calabria, 3 NY3d at 82) and the conviction must be vacated because “the jury is left without [any] basis, other than impermissible speculation, for its determination of’ guilt (People v Jackson, 65 NY2d at 272). We also restricted the breadth of the Ledwon one-witness rule, indicating that it does not control if the sole witness provides a credible explanation for the discrepant testimony (see People v De Tore, 34 NY2d 199, 207 [1974], cert denied sub nom. Wedra v New York, 419 US 1025 [1974]). Similarly, where a witness makes pretrial statements inculpating the defendant yet testifies that the criminal was actually another person “whose appearance was drastically different,” Ledwon does not mandate reversal on sufficiency grounds if the trier of fact “has an objective, rational basis for resolving beyond a reasonable doubt the contradictory inculpating and exculpating versions of the events given by the witness” (People v Fratello, 92 NY2d 565, 572-574 [1998], cert denied 526 US 1068 [1999] [rejecting a “per se rule of automatic dismissal because of inconsistency between the witness’s trial testimony and earlier statements”]).

It therefore follows that Ledwon does not apply when a conflict arises from the testimony of more than one witness (see People v Schulz, 4 NY3d 521, 530 [2005]). When this occurs, “it is the jury that must weigh the evidence and determine who to believe” (id.) because the discrepancy “simply creates a credibility question for the jury ... to be determined by them in the context of the entire body of evidence before them” (People v Jackson, 65 NY2d at 272). Thus, with the exception of the limited scenario envisioned by Ledwon and its offspring, we are not empowered to upset a conviction because of differences between the pretrial and trial statements of a witness, even if we believe “that the jury got it wrong” (People v Calabria, 3 NY3d at 83) . Such authority is vested exclusively in the intermediate appellate court under its obligation to review whether the weight of the evidence supported the verdict (see e.g. People v Gruttola, 43 NY2d 116, 122-123 [1977])—a determination governed by a legal standard that is far broader than the one employed in a sufficiency analysis (see e.g. People v Danielson, 9 NY3d at 348-349; People v Romero, 7 NY3d 633, 643-644 [2006]).

With these principles in mind, we conclude that the Led-won rule does not direct the outcome in this case. There certainly were serious conflicts in the trial proof about the perpetrator’s physical appearance. Detective Koch testified that, in the immediate aftermath of the robbery, the victim said that the perpetrator was a Hispanic man in his mid-20s who weighed about 140 pounds, was approximately five feet, six inches tall and held a knife in his right hand while he stole property with his left hand. It is undisputed, however, that defendant was 18 years old at the time of the robbery, stood six feet, three inches tall and had a nonfunctioning left arm.

But the victim was unwavering during his testimony at trial that the robber had not used his left arm, that defendant was the person who attacked him and that Detective Koch’s recollection of the perpetrator’s description was simply incorrect. Furthermore, Hernandez provided a rational explanation for the difference between his memory of the robber and the description provided by Detective Koch that the jury was entitled to accept or reject (see generally People v Fratello, 92 NY2d at 574; People v Schulz, 4 NY3d at 530). Confronted with the conflicting testimony of these two witnesses, the jury could rationally conclude—as this jury evidently did—that the victim’s recollection was credible and accurate, that the attacker had limited mobility in his left arm and that Hernandez did not tell Detective Koch that defendant used both of his arms during the robbery. Because the victim’s trial testimony was not inherently inconsistent, this case is not akin to the contradictory versions of the story told by the child in Ledwon. Under these circumstances, we cannot overturn the conviction on sufficiency grounds regardless of our subjective assessment of the strength of the People’s case (see People v Calabria, 3 NY3d at 83; see also Cavazos v Smith, 565 US —, —, 132 S Ct 2, 4 [2011] [the “inevitable consequence” of sufficiency principles “is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold”]).

We are concerned, of course, about the incidence of wrongful convictions and the prevalence with which they have been discovered in recent years. The unfortunate fact is that juries occasionally do not return proper verdicts. An important judicial bulwark against an improper criminal conviction is not only the restrictive scope of review undertaken during a sufficiency analysis, but the protection provided by weight of the evidence examination in an intermediate appellate court. This special power requires the court to affirmatively review the record; independently assess all of the proof; substitute its own credibility determinations for those made by the jury in an appropriate case; determine whether the verdict was factually correct; and acquit a defendant if the court is not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt (see e.g. People v Romero, 7 NY3d at 642-644; People v Crum, 272 NY 348, 350 [1936]). It permits an intermediate appellate court to serve, in effect, as a second jury (see People v Romero, 7 NY3d at 644 n 2). A conviction that was not in accord with the weight of the evidence results in an unreviewable order that rectifies an unjust conviction and precludes subsequent re-prosecution (see id.).

Concerns about the propriety of a conviction are heightened in a case like this where there was some evidence that the robber used both of his arms but it was undisputed that only one of defendant’s arms was fully functional. We have no doubt that the Appellate Division conscientiously fulfilled its responsibility to independently consider the proof before concluding that the weight of the evidence supported the finding that this defendant robbed Hernandez. Whatever our misgivings about that conclusion, the limitations of our Court’s jurisdiction prevent us from second-guessing it. In sum, under the constraints of the applicable standard of review, we hold that the evidence was legally sufficient to prove defendant’s guilt beyond a reasonable doubt.

III

Defendant asserts that the victim’s identification should have been suppressed because his son participated in the photo array despite having known defendant for a “long time” prior to the identification procedure. According to defendant, Juan Jr.’s translation service tainted the identification and also infected the victim’s identification of defendant during the trial. The People counter that, even if the photo array was unduly suggestive, suppression is not warranted since suggestiveness by a civilian is not illegal and the supposedly suggestive conduct here came from the victim’s son, not the police. In any event, the People believe that there was no basis to reopen the suppression hearing after Juan Jr. revealed his preexisting relationship with defendant because the defense could have disclosed this fact at the suppression hearing and the failure to do so precludes defendant from satisfying the reasonable diligence standard of CPL 710.40 (4).

Suggestive pretrial identification procedures violate the Due Process Clause (see People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]). When a defendant challenges an identification procedure as suggestive, the People have the “initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness” (id.). Once the People satisfy this duty, the defendant has the ultimate burden of proving that the identification procedure was unduly suggestive (see id.). A finding that the defendant did not establish suggestiveness may be overturned by this Court if record support for that determination is lacking (see e.g. People v McBride, 14 NY3d 440, 448 [2010], cert denied 562 US —, 131 S Ct 327 [2010]).

In this case, the trial court erred when it denied defendant’s motion to reopen the Wade hearing because Juan Jr.’s trial testimony fatally undermined the suppression court’s rationale for denying that motion. The suppression court had been troubled by Juan Jr.’s role at the identification procedure but ultimately concluded that suppression was not warranted because Juan Jr. did not know defendant. The significant revelation to the contrary at trial considerably strengthened defendant’s suggestiveness claim when viewed in conjunction with other relevant facts: (1) the detective acted on unspecified neighborhood gossip (the reliability of which was never directly questioned or tested) regarding the robber’s name and history based on information provided by Juan Jr.; (2) the detective was apparently concerned about the son’s possible preexisting familiarity with defendant (and the suggestiveness that this could cause) and broached the topic before the photo array was conducted; (3) the detective either was or should have been aware of the substantial risk that the son was familiar with defendant despite his assurance to the contrary; (4) there was no apparent impediment to the detective utilizing a Spanish interpreter who did not have preexisting information about the possible perpetrator or a familial connection to the victim; and (5) the detective could not be reasonably sure that the son would accurately translate the conversation.

Although any one of these facts or even several of them combined may not have established the requisite level of suggestiveness, their confluence with Juan Jr.’s testimony leads us to conclude that the record does not support the finding of the courts below that defendant failed to satisfy his burden of proving that the photo array was unduly suggestive. In our view, the suggestiveness cannot be attributed to the victim’s son, but to the detective’s decision to utilize him as the interpreter notwithstanding the possible risks that were involved in this practice (cf. People v Marte, 12 NY3d 583, 587 [2009], cert denied 559 US —, 130 S Ct 1501 [2010]). In addition, we do not believe that defendant could have discovered, before the suppression court ruled on the motion, the true extent of Juan Jr.’s familiarity with defendant or what Juan Jr. misrepresented to the police (see CPL 710.40 [4]). The photo array identification, therefore, should have been suppressed and defendant is entitled to a new trial. Before that occurs, the People may attempt to demonstrate, by clear and convincing evidence, that Hernandez’s ability to identify defendant has not been impermissibly influenced by the suggestive pretrial procedure that was employed here (see e.g. People v Young, 7 NY3d 40, 44 [2006]; People v Wilson, 5 NY3d 778, 779-780 [2005]).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered to be preceded by an independent source hearing.

Chief Judge Lippman (dissenting).

The evidence of defendant’s identity as the perpetrator of the robbery of which he was convicted in this case is fundamentally flawed. As the remedy directed by the majority—a new trial to be preceded by an independent source hearing—is inappropriate to the nature of the deficiency of the proof, we respectfully dissent.

In this case, “more than a merely mechanical categorization between law and facts is merited if this court is to perform its great function of review” (People v Santos, 38 NY2d 173, 176 [1975]). In order to determine the sufficiency of the evidence adduced at trial, this Court reviews the record “as a whole and [we are] empowered and obliged to conclude on a deficient record that guilt has not been established beyond a reasonable doubt as a matter of law” (id. at 175 [emphasis added]). The identification evidence in this case “is not insulated from our responsibility of review by the intervention of a jury verdict for which, in a narrow gauge, it may perhaps be said that there was sufficient evidence, when the record as a whole demonstrates that the verdict cannot stand” (People v Gruttola, 43 NY2d 116, 124 [1977, Jones, J., dissenting]). This single eyewitness case “raises a question of law which may not be cured or concealed behind the shield of a jury verdict” (People v Whitmore, 28 NY2d 826, 832 [1971, Breitel, J., dissenting], cert denied 405 US 956 [1972]). Viewing the record as a whole, there is no evidence that defendant committed the crime of which he was convicted other than the victim’s identification which has morphed and become so unrecognizable when compared to its original form that no reasonable jury could find it to be accurate beyond a reasonable doubt. We are deeply troubled by the nature of the identification evidence in this case which “raises a serious question of whether an innocent man has been convicted” (People v Calabria, 3 NY3d 80, 84 [2004, G.B. Smith, J., dissenting]). Accordingly, we cannot in good conscience support any outcome other than dismissal.

There were serious problems with the identification in this case from the time the robbery was first reported during a 911 call by the victim’s son, who impersonated his father and made other statements that admittedly were not true. Shortly thereafter, the victim provided a description to the police of a robber who obviously was not defendant—a man nine inches shorter who, unlike the handicapped defendant, had the full use of both arms. The next day, the victim told his therapist that he had been mugged by a man he recognized from previous sightings in his apartment complex—a fact he had inexplicably failed to mention to the police and that would have rendered such a gross misdescription most improbable. Next, the victim’s son reported to police that the rumor circulating around the neighborhood was that the perpetrator was someone with defendant’s first name (Sebastian) who had also been shot months earlier at a particular time and in a particular place in the same neighborhood. The victim then participated in the police-arranged showing of a photo array (which the majority has deemed to be unduly suggestive) during which he identified defendant as the perpetrator. He later testified at trial that the robber, now identified as defendant, had only one functional arm, and denied ever saying otherwise.

In People v Jackson (65 NY2d 265, 272 [1985]), we held that “[w]hen all of the evidence of guilt comes from a single prosecution witness who gives irreconcilable testimony pointing both to guilt and innocence, the jury is left without basis, other than impermissible speculation, for its determination of either.” The majority relies on People v Fratello (92 NY2d 565, 573-574 [1998], cert denied 526 US 1068 [1999]), wherein we held that

“when the jury, acting within its rightful province of determining credibility, weighing evidence and drawing justifiable inferences from proven facts, has an objective, rational basis for resolving beyond a reasonable doubt the contradictory inculpating and exculpating versions of the events given by the witness, its determination of guilt is no longer based on ‘impermissible speculation’ and should be upheld” (emphasis added).

But in this case there was no objective, rational basis for the jury to decide which version of events provided by the victim it should accept. Here, there was only one witness who was positioned to observe the robbery and the account he gave the police officer soon after the robbery was so radically different from the one he gave at trial that we believe the jury did not have a rational basis to choose between or reconcile the two versions. Although there were several witnesses, all of the identification evidence emanated from one source (the victim) and the jury was left with an impossible choice between two completely contradictory and irreconcilable alternatives given by the same person—one of which compelled a verdict of acquittal. The victim’s account was riddled with inconsistencies, so although there is no “per se rule of automatic dismissal because of inconsistency between the witness’s trial testimony and earlier statements” (id. at 574 [emphasis added]), we believe under the circumstances present in this case, failure to dismiss here violates the spirit of the rule against singular reliance on a witness who presents a hopelessly contradictory account of the events giving rise to the conviction. We do not reach this conclusion on the basis of a “subjective assessment of the strength of the People’s case” (majority op at 116) but rather upon an objective view, in light of facts recognized by the majority, pertaining to fundamental flaws in the evidence of defendant’s guilt.

For the foregoing reasons, we dissent and would reverse the order of the Appellate Division, vacate the judgment of conviction and dismiss the indictment.

Judges Ciparick, Read and Pigott concur with Judge Graffeo; Chief Judge Lippman dissents and votes to reverse and dismiss the indictment in a separate opinion in which Judges Smith and Jones concur.

Order reversed, etc.

      . As De Tore highlighted, there are situations where the Ledwon rule does not apply. De Tore explained that
      “[t]he rule of the Ledwon case is sound, but is not applicable. In the Ledwon case, there was no reliable basis offered to the jury to explain the shifting testimony; there was only the testimony of a 12-year-old boy who four times contradicted his own eyewitness versions about his father’s death. In this case, on the contrary, there was the one substantial recantation with the witness explaining his reasons for the change, reasons that the jury was entitled to accept or reject” (34 NY2d at 207).

      . The dissent’s contrary conclusion is primarily based on several dissenting opinions, one of which would have reversed a conviction that was supported by legally sufficient evidence if a reviewing court found that “the verdict cannot stand” (see People v Gruttola, 43 NY2d 116, 124 [1977, Jones, J., dissenting]). The binding precedent we have cited, however, clearly indicates that this amorphous standard is not the law.

      . There was also testimony of a woman who lived in Hernandez’s apartment building who indicated that she was familiar with defendant and had seen him inside the building on the night of the robbery.

      . The dissent’s core complaint is that the description Hernandez allegedly gave to Detective Koch was wholly inconsistent with Hernandez’s description of the robber at trial. Although it is true that these two recitations are not reconcilable, the dissent necessarily assumes that the jury had to credit Detective Koch’s recollection. The jury, however, was not required to be bound by the detective’s testimony.

      . For this reason, defendant’s challenge to trial counsel’s effectiveness is academic.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [960 NE2d 399, 936 NYS2d 630]
    The People of the State of New York, Appellant-Respondent, v Michael Hall, Respondent-Appellant. The People of the State of New York, Appellant-Respondent, v John Freeman, Respondent-Appellant.
    Argued October 13, 2011;
    decided November 21, 2011

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (William H. Branigan and John M. Castellano of counsel), for appellant-respondent in the first and second above-entitled actions.
    The People proved that the stun gun used in the robbery to incapacitate the victim was a dangerous instrument. (People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Acosta, 80 NY2d 665; People v Ford, 66 NY2d 428; People v Williams, 84 NY2d 925; People v Bleakley, 69 NY2d 490; People v Grassi, 92 NY2d 695; People v Norman, 85 NY2d 609; People v Vasquez, 88 NY2d 561; People v Curtis, 89 NY2d 1003, 222 AD2d 237.)

      Legal Aid Society, New York City (William B. Carney and Steven Banks of counsel), for respondent-appellant in the first above-entitled action.
    I. Defendant was deprived of his due process right to a fair trial by the court’s refusal to give a missing witness charge regarding witnesses who were family members, or friends and business associates of the complainant and, therefore expected to testify favorably for the prosecution, on the ground that they were equally available to the defense. (People v Savinon, 100 NY2d 192; People v Gonzalez, 68 NY2d 424; People v Badine, 301 AD2d 178; People v Creeden, 210 AD2d 422; People v Robertson, 205 AD2d 243; People v Rodriguez, 38 NY2d 95; People v Vasquez, 76 NY2d 722; People v Brown, 34 NY2d 658; People v Crimmins, 36 NY2d 230; People v Kitching, 78 NY2d 532.) II. Defendant was deprived of his due process right to a fair trial by the prosecutor’s elicitation of the underlying facts of a prior uncharged assault involving John Freeman and defendant for the purported reason of showing Freeman knew defendant previously, when Freeman had already admitted he knew defendant. (People v Baldi, 54 NY2d 137; Strickland v Washington, 466 US 668; People v Molineux, 168 NY 264; People v Alvino, 71 NY2d 233; People v Hudy, 73 NY2d 40; People v Allweiss, 48 NY2d 40; People v Bennett, 79 NY2d 464; People v Sandoval, 34 NY2d 371; People v Schwartzman, 24 NY2d 241; People v Fardan, 82 NY2d 638.) III. The Appellate Division correctly found that the People failed to adduce legally sufficient evidence that the unrecovered device as used here was a “dangerous instrument” under the law. (People v Vasquez, 88 NY2d 561; People v Carter, 53 NY2d 113; People v Cwikla, 46 NY2d 434; People v Galvin, 65 NY2d 761; People v Ozarowski, 38 NY2d 481; People v Nelson, 292 AD2d 397; People v Maio Ni, 293 AD2d 552; People v MacCary, 173 AD2d 646; People v Richard, 30 AD3d 750; People v Sinatra, 302 AD2d 615.)

      Appellate Advocates, New York City (William G. Kastin and Lynn W.L. Fahey of counsel), for respondent-appellant in the second above-entitled action.
    I. The Appellate Division properly modified Mr. John Freeman’s conviction because the People failed to prove beyond a reasonable doubt that the unrecovered “stun gun” allegedly used during the crime constituted a dangerous instrument, since such electronic devices vary widely in voltage, amperage, and overall capability; the complainant sustained only a temporary bruise or mark and was able to fight back immediately; and the People produced no expert or other evidence that the particular device in this case was readily capable, as used, of causing death or serious physical injury. (Jackson v Virginia, 443 US 307; United States v Myers, 972 F2d 1566; Mann v Taser Inti., Inc., 588 F3d 1291; Orsak v Metropolitan Airports Commn. Airport Police Dept. 675 F Supp 2d 944; Beaver v City of Federal Way, 507 F Supp 2d 1137; United States v Allen, 516 F3d 364; Cyrus v Town of Mukwonago, 624 F3d 856; Bryan v MacPherson, 630 F3d 805; Crowell v Kirkpatrick, 667 F Supp 2d 391; Taser Inti., Inc. v Stinger Sys., Inc., 705 F Supp 2d 1115.) II. When material, available witnesses favorably disposed to the People were not called, Mr. John Freeman was denied a fair trial and the effective assistance of counsel when (a) the court refused to give a missing witness charge and instructed the jury that the defense could have called them, and (b) defense counsel failed to request a missing witness charge as to a friend of the complainant who was present during the entire incident or to object to the court’s instruction forbidding the jury to speculate about the uncalled witnesses’ absence. (Strickland v Washington, 466 US 668; People v Williams, 5 NY3d 732; People v Gonzalez, 68 NY2d 424; People v Baldi, 54 NY2d 137; People v Patterson, 39 NY2d 288; People v Savinon, 100 NY2d 192; People v Edwards, 14 NY3d 733; United States v Blake-more, 489 F2d 193; People v Kitching, 78 NY2d 532; People v Keen, 94 NY2d 533.)
   OPINION OF THE COURT

Smith, J.

Defendants, Michael Hall and John Freeman, were accused of robbing a store and using a stun gun to incapacitate the store manager temporarily. We agree with the Appellate Division that the People failed to prove that the stun gun was a “dangerous instrument” as defined in the Penal Law, and that therefore defendants’ convictions for first degree robbery and fourth degree weapon possession cannot stand. However, we sustain defendants’ convictions for second degree robbery.

I

The People’s main witness was the store manager, Saidou Sow. Sow described a robbery by four men; Marcus Mitchell and Wesley Lee took cell phones from the store, while Hall knocked Sow down and dragged him outside and Freeman observed the events and shouted instructions. Hall, according to Sow, had something in his hand “like a toy gun,” which he put against Sow’s chest three times, producing a sensation “like a fire coming out of the toy gun.” Describing Hall’s third use of the stun gun, outside the store, Sow testified:

“Mr. Freeman was at the door of the store. He was yelling to his friends to use the gun against my body so that’s the time he put on me. When he put on me, I couldn’t do nothing. I dropped my hand. Mr. Freeman was there yelling, put the gun on his chest, put the gun on his chest. When he done that, I couldn’t move anymore.”

Sow quickly recovered, however, and confronted Lee, who was coming out of the store with stolen cell phones. When Sow grabbed Lee, Freeman in turn grabbed Sow from behind, holding him while Lee hit Sow in the face three times.

A security camera in the store captured some of the scene on a videotape, which was played for the jury. On the tape, the face of the man whom Sow identified as Hall is concealed, but Freeman’s face is visible, and Freeman can be seen grabbing and holding Sow while Lee hits him.

The jury convicted both defendants of one count of first degree robbery, two counts of second degree robbery and one count of fourth degree criminal possession of a weapon. The Appellate Division modified to vacate the first degree robbery and fourth degree weapon possession charges, and as modified affirmed (People v Hall, 79 AD3d 1068 [2d Dept 2010]; People v Freeman, 79 AD3d 1064 [2d Dept 2010]). A Judge of this Court granted the People and both defendants leave to appeal (16 NY3d 797, 798 [2011]), and we now affirm.

II

Under Penal Law § 160.15 (3), a person commits robbery in the first degree “when he forcibly steals property and . . . [u]ses or threatens the immediate use of a dangerous instrument.” Under Penal Law § 265.01 (2), a person commits criminal possession of a weapon in the fourth degree when “[h]e possesses any . . . dangerous . . . instrument . . . with intent to use the same unlawfully against another.” A “dangerous instrument” is defined in Penal Law § 10.00 (13) as “any instrument . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.” And “serious physical injury” is defined in Penal Law § 10.00 (10) as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

Here, the charges of first degree robbery and of weapon possession were premised on the theory that the stun gun Hall used (at Freeman’s urging) on Sow was a “dangerous instrument.” Perhaps it was, but we agree with the Appellate Division that the People wholly failed to prove it.

The stun gun was not recovered, and no expert or other witness was called to explain to the jury what a stun gun is, or what it can do. The only evidence of the weapon’s potential for harm came from Sow’s testimony, which described pain, a burning sensation and temporary incapacitation. These are very unpleasant things to experience, but they are not “serious physical injury” as the statute defines it. The jury had no basis for concluding that the stun gun was readily capable of killing or maiming someone, or of causing any of the other severe harms described in Penal Law § 10.00 (10).

The People’s argument is that the jury could have inferred “that, if defendant had continued to use the stun gun ... it could have caused burn scars or caused the victim to fall limp and suffer serious physical injury by striking his head on the ground or crashing into the glass counters in his store.” This sort of speculation is not a permissible ground for a verdict. Of course, almost any weapon could cause death or serious physical injury, for example by propelling the victim into a hard or a sharp object. More proof than that is required to show that an instrument is “readily capable” of causing such consequences.

The Appellate Division was therefore correct in vacating defendants’ convictions for first degree robbery and fourth degree weapon possession.

III

Defendants claim the trial court erred in refusing to give a missing witness instruction. We agree, but hold that the error does not entitle defendants to relief, because Hall did not preserve it and as to Freeman it was harmless.

Defense counsel identified four possible missing witnesses at trial: Sow’s brother, who owned the store that was robbed; Sow’s' cousin, the owner of a nearby store; the manager of another nearby store, Mohammed Muflhi; and Isaac Bossman. The record does not suggest that Sow’s brother was at the store at the time of the crime, and we see no basis for a missing witness charge as to him, but as to the other three the charge was warranted.

According to the prosecutor’s opening statement, both Sow’s cousin and Muflhi were friends of Sow who saw part of the robbery. The prosecutor said:

“Both of them watched as Michael Hall beat Saidou Sow outside of the store. Both of them watched as John Freeman directed Mike Hall to do it.
“Both of them watched as John Freeman held Saidou so [Lee] could punch him in the face repeatedly and get away with those phones.”

Sow testified that Bossman was a friend of his who was in the store when the robbery happened, and the videotape confirms that Bossman was present. The prosecution did not call the cousin, Muflhi or Bossman as witnesses at trial.

Before the close of the People’s proof, counsel for Freeman said “we will probably request a missing witness” on the prosecutor’s failure to call Sow’s brother, his cousin and Muflhi. He also raised the possibility that those witnesses would be made available to the defense. After some colloquy, the court addressed the prosecutor, saying:

“[Y]ou are being put on notice that before the close of the People’s case as is required the defense is indicating to the court if you don’t call various people they will seek a missing witness charge at the charge conference. You can deflect that by bringing in the people and having them available to the defense. If they are equally available to both sides, then a missing witness charge is not appropriate.”

After the People had rested, but before a decision had been made on whether the defense would be allowed to interview the witnesses, Hall’s counsel told the court “I am now requesting the potential missing witness charge.” He added, however: “Of course, if there is an opportunity tomorrow for us to have the witnesses available, I will withdraw that application.” The court denied both Freeman’s and Hall’s applications as “premature.”

The witnesses defense counsel had asked for—Sow’s brother, his cousin, and Muflhi, but not Bossman—were made available to the defense. Defense counsel interviewed them, and decided not to call them.

Hall’s counsel said no more about a missing witness charge, but Freeman’s counsel renewed his motion for such a charge after the close of all the evidence, for the first time including Bossman as a missing witness. His application was denied. Freeman’s counsel also asked to be allowed to make a missing witness argument in summation; the court responded that, if the argument was made, the prosecution “will certainly be allowed to tell the jury that [the witnesses] were equally available to the defense.”

Freeman’s counsel did make the argument he had foreshadowed, saying of Sow’s brother and cousin and Muflhi: “They did not give assistance in this trial.” A prosecution objection was sustained by the court, which then instructed the jury: “The jury is not to speculate concerning any of those individuals . . . The fact that they were not called as witnesses in this case is not to form any part of your judgment in this matter with respect to the speculation as to what any of them may have said.” Hall’s counsel also made a missing witness argument in summation, including Bossman in his list of missing witnesses; the prosecution made no objection to this argument, and the court gave no instruction about it. The prosecutor, in his own summation, argued that the defense “could have called the witnesses just as easily as I could have.” The court overruled Freeman’s objection to this argument, and told the jury:

“the defense has no burden to call witnesses, but they have the right if they wished to do so . . . counsel, you could have if you wished to called any of the four witnesses to testify on your clients’ behalf and you elected not to, the same as [the prosecutor] elected not to call them.”

The court’s rulings on this issue reflect a misunderstanding of our law on missing witness instructions.

A missing witness instruction, as we explained in People v Savinon (100 NY2d 192, 196 [2003]), tells a jury that it may “draw an unfavorable inference based on a party’s failure to call a witness who would normally be expected to support that party’s version of events.” There are three preconditions to a missing witness instruction: “First, the witness’s knowledge must be material to the trial. Second, the witness must be expected to give noncumulative testimony favorable to the party against whom the charge is sought. . . Third, the witness must be available to that party” (id. at 197).

As to Sow’s cousin, Muflhi and Bossman, these preconditions were met. All three were eyewitnesses to the robbery; all three were friendly with Sow, and could have been expected to support his version of events; and all were available to the prosecution. It is irrelevant that they were also available to the defense, in the sense that defense counsel were allowed to interview them, and the defense could have called them if it chose. A missing witness instruction permits the jury to draw the common-sense inference that a failure to call a seemingly friendly witness suggests some weakness in a party’s case. That inference is not rebutted when the opposing party chooses not to call the same witness—a witness who, by definition, the opposing party would expect to be hostile.

For similar reasons, the court’s rulings on objections and its instructions to the jury during closing argument by Freeman’s counsel and the prosecutor were incorrect. The jury should not have been told that the absence of the witnesses “is not to form any part of your judgment.” Their absence was something the jury could take into account. And the court’s statement that defense counsel “could have . . . called any of the . . . witnesses” tended to obscure the point that these witnesses would normally be expected to support the prosecution’s view of the case.

The court’s error, however, does not require reversal. Hall expressly withdrew his request for a missing witness instruction, in return for an opportunity to interview the witnesses in question, and he was allowed to make a missing witness argument in summation without interruption or comment. As to Freeman, the error was harmless. Freeman’s participation in the robbery was recorded on videotape: he is seen in front of the store during the robbery, looking around, observing the clash between Sow and the man identified as Hall, and then grabbing and holding Sow while Lee punches him. Freeman testified in his own defense, and did not deny that he was the person on the videotape. He instead offered a ridiculous explanation, making himself first an innocent bystander and then a good Samaritan, trying to protect Lee against Sow’s aggression. The evidence against Freeman was overwhelming, and we find it impossible to imagine that a missing witness charge, or different rulings on the closing arguments, would have persuaded a jury to acquit him (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).

IV

Hall complains that he was prejudiced when, during the cross-examination of Freeman, testimony was admitted about a previous assault that Hall and Freeman had committed together. We see no error.

Freeman, on direct examination, tried to minimize his connection with Hall. His lawyer asked him whether he knew Hall, to which Freeman replied: “I know his sister. I don’t know Michael Hall as far as me and him, you know, we be together.”

In fact, Hall and Freeman had been convicted of participating in an assault the year before the robbery—convictions that, the trial court had previously ruled, the prosecution could not bring out on cross-examination (see People v Sandoval, 34 NY2d 371 [1974]). The prosecution suggested, quite reasonably, that Freeman’s testimony opened the door to the use of the assault against him; but a problem presented itself because Hall, who did not testify, had not opened the door to anything. The trial judge fashioned what seems to us a fair solution: he did not allow the prosecutor to refer to the conviction, but did allow him to ask whether Freeman remembered “having a fight” along with Hall against another person. This allowed the prosecutor to attack Freeman’s denial that he knew Hall well, with minimal prejudice to Hall.

Unfortunately, Freeman’s answer to the question was not as carefully crafted as the court’s ruling. In the course of his answer, Freeman remarked that “we all [including Hall] got locked up for so-called assaulting this guy.” That testimony might have been prejudicial to Hall, but we have no reason to believe that either the prosecutor or the court saw it coming. Hindsight suggests that the prejudice might have been avoided by instructing Freeman in advance, out of the jury’s presence, not to volunteer this information, but Hall did not request such an instruction, and we cannot fault the court for failing to anticipate what happened.

Defendants’ other contentions are without merit.

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

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

In each case: Order affirmed.


author: Pigott, J. Chief Judge Lippman (dissenting).

text:
    [960 NE2d 393, 936 NYS2d 624]
    Raul Salazar, Respondent, v Novalex Contracting Corp. et al., Appellants. (And a Third-Party Action.)
    Argued October 18, 2011;
    decided November 21, 2011

      POINTS OF COUNSEL

      White Quinlan & Staley, L.L.P., Garden City (Arthur T. McQuillan of counsel), for Novalex Contracting Corp., appellant.
    I. The decision and order of the Appellate Division, First Department, which reversed the grant of summary judgment under Labor Law § 240 (1), and reinstated that claim was not properly made, wherein the plaintiff/respondent partially fell into the trench that was in the process of being filled as of the time of the accident. (Mancini v Pedra Constr, 293 AD2d 453; Magnuson v Syosset Community Hosp., 283 AD2d 404; Miller v Weeden, 7 AD3d 684; Paolangeli v Cornell Univ., 296 AD2d 691; Wells v British Am. Dev. Corp., 2 AD3d 1141; Pursel v Wellco, Inc., 6 AD3d 1096; Ozzimo v H.E.S., Inc., 249 AD2d 912; Caradori v

      Med Inn Ctrs. of Am., 5 AD3d 1063; Kaleta v New York State Elec. & Gas Corp., 41 AD3d 1257; Rocovich v Consolidated Edison Co., 78 NY2d 509.) II. The decision and order of the Appellate Division, First Department, that reversed the grant of summary judgment under Labor Law § 241 (6) and reinstated that claim was not properly made, wherein the plaintiff acknowledged that part of his work was to fill the very trench with cement that he partially fell into.

      Law Offices of Epstein & Rayhill, Elmsford (Jonathan R. Walsh of counsel), for 96 Rockaway, LLC, appellant.
    I. The First Department erred when it reversed the lower court’s order granting summary judgment by reinstating plaintiff’s claim under Labor Law § 240 (1) because plaintiffs accident was not height-related as contemplated by the meaning of the statute. (Mancini v Pedra Constr., 293 AD2d 453; Magnuson v Syosset Community Hosp., 283 AD2d 404; Miller v Weeden, 7 AD3d 684; Paolangeli v Cornell Univ., 296 AD2d 691; Wells v British Am. Dev. Corp., 2 AD3d 1141; Pursel v Wellco, Inc., 6 AD3d 1096; Ozzimo v H.E.S., Inc., 249 AD2d 912; Caradori v Med Inn Ctrs. of Am., 5 AD3d 1063; Kaleta v New York State Elec. & Gas Corp., 41 AD3d 1257; Rocovich v Consolidated Edison Co., 78 NY2d 509.) II. The First Department erred when it reversed the lower court’s order granting summary judgment by reinstating plaintiffs claim under Labor Law § 240 (1) because plaintiffs accident occurred as part of the “usual and ordinary dangers” of construction work.

      Krai Clerkin Redmond Ryan Perry & Girvan, Melville (James V. Derenze of counsel), for T-Construction Co., Inc., appellant.
    I. Plaintiffs claim that T-Construction Co., Inc. violated Labor Law § 240 (1) should be dismissed as plaintiff worked at ground level, did not fall from an elevated height and was not hurt by a falling object, and none of the specified protective devices applied. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914; Rocovich v Consolidated Edison Co., 78 NY2d 509; Toefer v Long Is. R.R., 4 NY3d 399; Melber v 6333 Main St., 91 NY2d 759; Pope v Safety & Quality Plus, Inc., 74 AD3d 1040; Avila v Plaza Constr. Corp., 73 AD3d 670; Barillaro v Beechwood RB Shorehaven, LLC, 69 AD3d 543; Mancini v Pedra Constr., 293 AD2d 453; Magnuson v Syosset Community Hosp., 283 AD2d 404; Somerville v Usdan, 255 AD2d 500.) II. Plaintiffs claims under section 241 (6) of the New York State Labor Law should be dismissed. (Samiani v New York State Elec. & Gas Corp., 199 AD2d 796; Pereira v

      Quogue Field Club of Quogue, Long Is., 71 AD3d 1104; Nostrom v A.W. Chesterton Co., 15 NY3d 502; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Barillaro v Beechwood RB Shore-haven, LLC, 69 AD3d 543; Lupo v Pro Foods, LLC, 68 AD3d 607; Messina v City of New York, 300 AD2d 121; Piccuillo v Bank of N.Y. Co., 277 AD2d 93; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Pellescki v City of Rochester, 198 AD2d 762.)

      The Perecman Firm, P.L.L.C., New York City (Peter Rigelhaupt and David H. Perecman of counsel), for respondent.
    I. The plaintiff-respondent was injured as a result of a gravity related hazard within the scope of Labor Law § 240 (1) and, as such, the order of the First Department was, as a matter of law, properly made. (Runner v New York Stock Exch., Inc., 13 NY3d 599; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333; Martinez v City of New York, 93 NY2d 322; Carpió v Tishman Constr. Corp. of N.Y., 240 AD2d 234; Bell v Bengomo Realty, Inc., 36 AD3d 479; Trillo v City of New York, 262 AD2d 121; Clark v Fox Meadow Bldrs., 214 AD2d 882; Stolt v General Foods Corp., 81 NY2d 918; Auriemma v Biltmore Theatre, LLC, 82 AD3d 1.) II. The order of the Appellate Division reinstating plaintiffs Labor Law § 241 (6) cause of action was properly made, as the trench constituted a hazardous opening under 12 NYCRR 23-1.7 (b) (1) and was thus required to be guarded by a cover or safety railing, and the trial court erred in holding that it required plaintiff to fall through an opening to a level below. (Olsen v James Miller Mar. Serv., Inc., 16 AD3d 169; Messina v City of New York, 300 AD2d 121; Keegan v Swissotel N.Y., 262 AD2d 111, 94 NY2d 858; Carpenter v 149 Edison St., 269 AD2d 751; Misicki v Caradonna, 12 NY3d 511; Morris v Pavarini Constr., 9 NY3d 47; Gallagher v Levien & Co., 72 AD3d 407.)
   OPINION OF THE COURT

Pigott, J.

Plaintiff Raul Salazar was injured in May 2004, while working in the basement of a Brooklyn building undergoing renovations. The property was owned by 96 Rockaway, LLC. Salazar was employed by T-Construction Co., Inc.; the general contractor was Novalex Contracting Corp. The accident occurred in the largest room of the basement, which had a trench system for piping. Salazar and the other workmen were laying a concrete floor. They were directed to pour and spread concrete over the entire basement floor, including the trenches. Before he began work on the day he was injured, Salazar looked for, and visually located, the trenches.

The concrete flowed from a truck into wheelbarrows placed in the basement, via a chute fed through a window. Workmen poured the wet concrete from the wheelbarrows onto the floor of the basement, where Salazar and others “pulled” the concrete with rakes, ensuring that the floor would be level. As Salazar explained the next stage of the process at his deposition, the trench system fills with concrete “by itself because the concrete runs and it fills it out . . . the concrete kind of slides down or runs down” into the trenches.

Salazar was injured after he stepped into a trench that was partially filled with concrete. He had been walking backwards across the floor, “pulling” concrete with a rake held in front of him, and looking forward, rather than in his direction of motion. As Salazar recalled the incident, “one of the trenches began to fill out with concrete, and at some point when I was pulling, walking backwards, . . . my foot got inside, into that hole.” After Salazar’s right foot hit the bottom of the trench, his right leg folded beneath him. Before being assisted out of the trench by his coworkers, Salazar tried to pull his leg out “on my own, myself, and that’s how I hurt myself.”

According to Salazar, the portion of the trench system into which he stepped was about two feet wide and “[b]etween 3 and 4 feet deep.” There was no railing, barricade, or cover around or over the trench.

Salazar commenced a lawsuit against 96 Rockaway, LLC, Novalex Contracting Corp., and T-Construction Co., Inc., alleging, among other things, violations of Labor Law § 240 (1) and § 241 (6). Discovery and a third-party action ensued. T-Construction Co. moved for summary judgment, seeking dismissal of the complaint, and all cross claims against it. 96 Rockaway and Novalex Contracting Corp. cross-moved for identical relief. Supreme Court granted defendants’ motions, and dismissed Salazar’s complaint in its entirety (2007 NY Slip Op 52680[U] [2007]).

The Appellate Division reversed so much of Supreme Court’s order as granted defendants’ motions for summary judgment dismissing Salazar’s Labor Law § 240 (1) and § 241 (6) claims, denied the motions, and reinstated those claims (72 AD3d 418 [2010] ). One Justice dissented. The Appellate Division granted defendants leave to appeal to this Court, certifying the question whether its order had been properly made (2010 NY Slip Op 79687[U] [2010]). We now reverse.

Liability under Labor Law § 240 (1) depends on whether the injured worker’s “task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against” (Broggy v Rockefeller Group, Inc., 8 NY3d 675, 681 [2007]). The kind of accident triggering section 240 (1) coverage is one that will sustain the allegation that an adequate “scaffold, hoist, stay, ladder or other protective device” would have “shielded] the injured worker from harm directly flowing from the application of the force of gravity to an object or person” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009] [emphasis removed], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Salazar argues that the trench into which he stepped should have been covered or barricaded in such a way as to prevent his fall.

In Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. (18 NY3d 1 [2011] ), the plaintiff was injured when a nearby wall that was being demolished fell into two 10-foot-high unsecured metal pipes, causing them to topple onto him. This Court denied summary judgment to both parties, holding that an issue of fact existed as to whether the worker’s injury resulted from the absence of a safety device statutorily prescribed under Labor Law § 240 (1). In doing so, the Court contrasted the facts of Wilinski with other cases in which summary judgment dismissing the complaint would have been warranted:

“Here, the pipes that caused plaintiffs injuries were not slated for demolition at the time of the accident. This stands in contrast to cases where the objects that injured the plaintiffs were themselves the target of demolition when they fell. In those instances, imposing liability for failure to provide protective devices to prevent the walls or objects from falling, when their fall was the goal of the work, would be illogical. Here, however, securing the pipes in place as workers demolished nearby walls would not have been contrary to the objectives of the work plan” (id. at 11 [citation omitted]).

Here, the installation of a protective device of the kind that Salazar posits—assuming that such a device, although not listed in Labor Law § 240 (1), was an “other deviee[ ]” within the meaning of the statute—would have been contrary to the objectives of the work plan in the basement. Salazar testified that he was directed to pour and spread concrete over the entire basement floor, a task that included filling the trenches. Put simply, it would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four-foot-deep hole when the very goal of the work is to fill that hole with concrete. Moreover, the record is clear that the purpose of the work here was to lay concrete over the entire basement. Since the liquid concrete would necessarily fill the trench and pour out over the surrounding floor areas, it would be impractical and contrary to the very work at hand to cover the area where the concrete was being spread, particularly since the settling of concrete requires that the work of leveling be done with celerity. Given that Labor Law § 240 (1) should be construed with a commonsense approach to the realities of the workplace at issue, defendants are entitled to summary judgment dismissing that claim.

Salazar’s Labor Law § 241 (6) cause of action, predicated on a violation of 12 NYCRR 23-1.7 (b) (1) (i), fails for similar reasons. That regulation states that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part.” Even assuming that the trench here constituted a “hazardous opening,” 12 NYCRR 23-1.7 (b) (1) (i) cannot be reasonably interpreted to apply to a case like this one, where covering the opening in question would have been inconsistent with filling it, an integral part of the job. Hence, defendants are also entitled to summary judgment dismissing the Labor Law § 241 (6) claim.

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiffs Labor Law § 240 (1) and § 241 (6) claims dismissed, and the certified question answered in the negative.

Chief Judge Lippman (dissenting).

The majority misapplies this Court’s recent holding in Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. (18 NY3d 1 [2011]), and errs by viewing the evidence in the light most favorable to defendants, rather than in the light most favorable to plaintiff, on defendants’ motions for summary judgment. Therefore, I respectfully dissent.

The majority endeavors to create exceptions to Labor Law § 240 (1) that should not exist and to narrow arbitrarily the scope of the statute in concluding that it does not apply to this case in which an elevation-related risk was clearly present and the accident, which was caused by the force of gravity acting on the body of plaintiff, could have been prevented by the simple placement of a cover over the trench or a barrier around its perimeter. Contrary to the position taken by the majority, this is precisely the type of case to which section 240 (1) was intended to apply. I also see no reason why the trench in this case is not a “hazardous opening” within the meaning of 12 NYCRR 23-1.7 (b) (1) that should have been covered. Because there exist triable issues of fact with regard to plaintiff’s Labor Law § 240 (1) and § 241 (6) claims, I respectfully dissent.

In Runner v New York Stock Exch., Inc. (13 NY3d 599, 603 [2009]), we held that the “single decisive question is whether plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” and that test is certainly met in this case. In Rocovich v Consolidated Edison Co. (78 NY2d 509 [1991]), we clarified that “extent of the elevation differential” (here, measured by the depth of the trench) is not necessarily dispositive (id. at 514) and on this basis I conclude that based on plaintiffs deposition testimony as to the depth of the trench (which we must take as true for purposes of deciding defendants’ motions for summary judgment), there was a significant elevation differential in this case. It is undisputed that no safety device was provided to plaintiff.

Instead of viewing the facts in the light most favorable to plaintiff and allowing this case to proceed to a trial, the majority sidesteps a glaring set of triable factual issues—principally, whether the trench was being actively filled at the time of the accident, and if it was not, whether it could have been temporarily covered or blocked off prior to being filled. During a deposition, plaintiff testified that at the time of the accident,

“I was walking backwards, and at the same time I was pulling the concrete, and at the same time we were smoothing the concrete, then one of the trenches began to fill out with concrete, and at some point when I was pulling, walking backwards . . . my foot got inside, into that hole,” and he also testified with regard to the trench that “it fill[ed] out by itself because the concrete r[an] and it fill[ed] it out.”

When asked directly “is it not true that someone had actually poured concrete from the wheelbarrow into that trench prior to the accident?” plaintiff responded “[n]ot directly, because the concrete kind of slides down or runs down.” It is therefore not clear from the record that the trench was purposely being filled at the time of the accident, yet the majority nevertheless concludes that this was the case. Plaintiffs testimony suggests otherwise—that the concrete in the trench into which his right leg fell had unintentionally seeped in. Defendants maintain that the trench was being purposely filled by plaintiffs coworkers at the time. In sum, based on this record we know only that the plan was to fill the trench at some point before the job was complete, but we do not know precisely when. There is a factual dispute about the sequencing of this aspect of the project that should not be resolved by this Court on an appeal from the denial of a summary judgment motion.

I agree that “Labor Law § 240 (1) should be construed with a commonsense approach to the realities of the workplace at issue” (majority op at 140). This is the principle we described in Wilinski, which simply means that courts should not lay down rules that are, as a practical matter, impossible to follow. We implicitly recognized in that case that it would be irrational to require the shoring up of a structure being demolished. However, in this case, because we do not know enough about the realities of this workplace, a trial is required in order for key factual determinations to be made regarding the specifics of the work plan as well as the feasibility of a cover or barrier in light of those parameters. A covering over or a barrier surrounding the trench would undoubtedly have greatly decreased the likelihood of an accident like the one that befell plaintiff and there is no reason why such a device could not have been used if the trench was not being filled at the time that plaintiff approached it while walking backwards.

Even if we were to assume a disputed fact, I believe that the majority’s pronouncement that “it would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four-foot-deep hole when the very goal of the work is to fill that hole with concrete” (majority op at 140) is premature. This Court is not in a position to determine conclusively that it was impossible to fill the trench and protect plaintiff from the accident at the same time. That is a finding of fact that should be made after experts on construction techniques present their views regarding this subject at trial for the consideration of the factfinder. The factual assumption underlying the majority’s entire analysis—that the planned order of the work was for the concrete to be poured onto the floor and then seep into the trench, such that the seepage was intentional—is not entirely consistent with the evidence or, on the present state of the record, with any coherent work strategy.

The majority’s approach runs counter to the fundamental purpose of Labor Law § 240 (1). The statute, which is aimed at protecting workers from elevation-related risks and fostering safer working environments, should be construed liberally (see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-521 [1985] [holding that “with respect to section 240, . . . ‘this statute is . . . for the protection of workmen from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was . . . framed’ ”], quoting Quigley v Thatcher, 207 NY 66, 68 [1912]). Plaintiffs in cases such as this should be afforded the protections of the statute designed to ensure the safety and physical well-being of workers.

I also believe that there are material factual issues as to plaintiffs Labor Law § 241 (6) claim. The trench here was a “hazardous opening” under 12 NYCRR 23-1.7 (b) (1) (i) and the regulation states that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place.” The majority’s rationale for rejecting plaintiffs Labor Law § 241 (6) claim is identical to that which it uses to reject the Labor Law § 240 (1) claim and thus fails for the same reasons.

As there are genuine issues of material fact rendering the drastic remedy of summary judgment unavailable to defendants in this case, I dissent and would affirm the order of the Appellate Division and answer the certified question in the affirmative.

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

Order reversed, etc.

      . Salazar testified at deposition that there were multiple trenches in the room. The general contractor’s vice-president described a single, continuous trench. This dispute is not relevant to the disposition of the case.

      . Contrary to the dissent’s reading (see dissenting op at 142), Salazar’s testimony does not suggest that the process of seepage whereby the trench he stepped in had filled with concrete “by itself’ was unintentional.

      . Although the Appellate Division dissent analyzes 12 NYCRR 23-1.7 (b) (1) (iii), Salazar’s brief makes clear that he relies upon 12 NYCRR 23-1.7 (b) (1) (i).

       Covers and barriers qualify as “other [safety] devices” within the meaning of the statute, which is not limited to devices expressly enumerated therein.