author: Wilson, J. Rivera, J.

text:
    [81 NE3d 360, 58 NYS3d 877]
    Miriam Aristy-Farer et al., Respondents, v State of New York et al., Appellants. New Yorkers for Students’ Educational Rights (“NYSER”) et al., Respondents, v State of New York et al., Appellants.
    Argued May 30, 2017;
    decided June 27, 2017

      POINTS OF COUNSEL

      Eric T. Schneiderman, Attorney General, New York City {Andrew W. Amend, Barbara D. Underwood, Steven C. Wu and Philip V. Tisne of counsel), for appellants.

      Michael A. Rebell, New York City and Morgan, Lewis & Bockius LLP, New York City (Douglas T. Schwarz, John A. Vassallo, III, Peter Shadzik and Michael E. Tracht of counsel), for respondents.
   OPINION OF THE COURT

Wilson, J.

Since 1894, the New York State Constitution has mandated that “[t]he legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated” (art XI, § 1). This Court gave contours to that right in a trilogy known as the “Campaign for Fiscal Equity” or “CFE” litigation. In Campaign for Fiscal Equity v State of New York, we held that our State Constitution “requires the State to offer all children the opportunity of a sound basic education. Such an education should consist of the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury” (86 NY2d 307, 316 [1995] [CFE I] [citation omitted]). The sound basic education guaranteed by the Constitution requires the State to afford students with the “opportunity for a meaningful high school education, one which prepares them to function productively as civic participants” and “compete for jobs that enable them to support themselves” (Campaign for Fiscal Equity v State of New York, 100 NY2d 893, 908, 906 [2003] [CFE II]).

Our CFE decisions establish that there is “a constitutional floor with respect to educational adequacy . . . [and the courts] are responsible for adjudicating the nature of [the] duty [to provide a sound basic education]” (CFE I, 86 NY2d at 315). The Education Article does not guarantee “that all educational facilities and services would be equal throughout the State” (Board of Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d 27, 47-48 [1982]). Instead, it requires “a State-wide system assuring minimal acceptable facilities and services” (id. at 47). “[U]nevenness of educational opportunity d[oes] not render the school financing system constitutionally infirm, unless it c[an] be shown that the system’s funding inequities resulted in the deprivation of a sound basic education” (CFE I, 86 NY2d at 315). The Education Article does not guarantee any particular level or amount of state funding, but rather it guarantees students the opportunity to achieve a basic level of education.

The two actions presently before us require us to determine whether the claimed violations of the Education Article have been sufficiently pleaded. Defendants in both cases, collectively, are the State of New York, the Governor, the Board of Regents, and the President of the University of the State of New York and Commissioner of Education. Plaintiffs in the NYSER action are individual parents of children in a number of school districts, led by New Yorkers for Students’ Educational Rights (NYSER), an educational advocacy group. Plaintiffs in the Aristy-Farer action are primarily parents of New York City schoolchildren who seek to assert claims on behalf of all similarly situated parents and children. All plaintiffs contend that the State has violated the Education Article by failing to provide students with a sound basic education.

Supreme Court denied defendants’ CPLR 3211 motions to dismiss plaintiffs’ respective complaints. Upon defendants’ appeal, in one order, the Appellate Division modified both Supreme Court orders and, as so modified, affirmed (143 AD3d 101, 120 [1st Dept 2016]). In the NYSER action, the Appellate Division modified to dismiss plaintiffs’ third cause of action “except insofar as it challenges the adequacy of defendant State’s education funding accountability mechanisms” and otherwise affirmed (id.). In the Aristy-Farer action, the Appellate Division modified to dismiss the second and third causes of action, leaving only the first cause of action pending. The Appellate Division granted defendants in both actions leave to appeal to this Court, to answer the certified question: “Was the order of the Supreme Court, as modified by [the Appellate Division], properly made?”

We now hold that the NYSER plaintiffs’ first and second causes of action do not survive a motion to dismiss. With respect to the third cause of action, defendants challenge it, as modified by the Appellate Division, only insofar as it concerns school districts other than New York City and Syracuse. As a result, the third cause of action survives as to New York City and Syracuse. The fourth cause of action, generally alleging an Education Article violation, is sufficiently pleaded as to New York City and Syracuse only, and also survives defendants’ motion to dismiss. The Aristy-Farer plaintiffs do not challenge the Appellate Division’s dismissal of their second and third causes of action, and we conclude that their remaining cause of action should also be dismissed.

I.

We briefly summarize the CFE litigation to provide context. In CFE I, we held that the plaintiffs adequately pleaded that the State had failed to provide New York City students with a sound basic education. We noted that for those plaintiffs to prove their case, they would “have to establish a causal link between the present funding system and any proven failure to provide a sound basic education to New York City school children” (CFE I, 86 NY2d at 318), and later explained the proof should include deficient “inputs” and “outputs” (CFE II, 100 NY2d at 908-909). In CFE II, we upheld the trial court’s finding that the State had failed to fund New York City schools adequately to provide a sound basic education, and we directed the State to “ascertain the actual cost of providing a sound basic education in New York City” (id. at 930). In CFE III, we rejected the lower courts’ determinations that the State had understated the cost of providing a sound basic education in New York City (see Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14, 30 [2006] [CFE III]).

Instead, we held that the obligation to determine the amount and allocation of funds was a peculiarly legislative function, and the State had proffered sufficient evidence to justify its estimate as rational. “Accordingly, we declare [d] that the constitutionally required funding for the New York City School District include [d] additional operating funds in the amount of $1.93 billion” (id. at 31). In so concluding, we emphasized our deference to the legislature in areas of education policymaking, budget, and finance. Our decision in CFE III terminated that litigation; no injunctive relief survives that terminatiom

II.

The NYSER plaintiffs allege that, in 2007, following our CFE III decision, the State adopted various programs to increase funding not only for New York City schools, as our mandate required, but statewide. They allege that the State accomplished this through the Budget and Reform Act of 2007 (codified at Education Law § 3602), which included a program, Foundation Aid, that established a new formula for calculating state aid to school districts. However, according to the NYSER complaint, after the 2008 recession, the State froze education spending levels, and later, reduced them. Both the NYSER and Aristy-Farer plaintiffs allege that, in 2010, the State enacted “Annual Professional Performance Review” (APPR) legislation, which required the State to withhold education aid to any district that did not implement a plan to assess the performance of teachers and administrators. The State enacted the APPR legislation to receive funds under the federal “Race to the Top” program. After New York City failed to comply in 2012, the State withheld funds. Those allegations form the core of the current lawsuits.

Plaintiffs in both actions contend that the State has violated the Education Article by failing to fund public schools adequately, but the causes of action differ with regard to the allegations in support thereof. Specifically, the NYSER complaint contains four causes of action. First, it alleges that defendants failed to comply with our CFE decisions by depriving the New York City school district of the “minimum constitutional level of funding.” Second, the complaint alleges that students in school districts throughout the state are being deprived of a sound basic education due to defendants’ failure to implement the Budget and Reform Act of 2007, and their implementation of various budget-cutting measures. Third, the complaint alleges that defendants violated the Education Article by, among other things, failing to: identify essential courses of study, develop cost-efficient policies, undertake cost studies to determine the cost of a sound basic education, and ensure an adequate accountability system for measuring education performance. Fourth, and finally, the complaint alleges that defendants have failed to provide students across the state with a sound basic education in violation of the Education Article.

The Aristy-Farer plaintiffs focus on the State’s adoption of the APPR system, and allege that the State withheld approximately $290 million from the New York City school district. They assert three causes of action, alleging that: first, the State’s withholding of the $290 million denied New York City schools funding necessary for the provision of a sound basic education; second, the State’s failure to induce school boards and unions to agree to an APPR plan through mechanisms other than by withholding funds was arbitrary, unreasonable, and violated their due process rights; and third, the withholding of funds denied them equal protection.

III.

In considering the sufficiency of a pleading subject to a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), our well-settled task is to determine whether, ‘accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated’ ” (CFE I, 86 NY2d at 318, quoting People v New York City Tr. Auth., 59 NY2d 343, 348 [1983]). Plaintiffs here are entitled to all favorable inferences that can be drawn from their pleadings Csee id.). Thus, “[i]f we determine that plaintiffs are entitled to relief on any reasonable view of the facts stated, our inquiry is complete and we must declare the complaint legally sufficient” (id.).

IV.

Before turning to the specific claims in each complaint, we address the NYSER plaintiffs’ contention that they can allege statewide violations of the Education Article based on claimed funding deficiencies without including district-by-district facts in their pleadings. Our prior Education Article cases have clearly and consistently stated that the type of claims brought here must be pleaded with district specificity to be viable. In Levittown, we explained that absent allegations of “gross and glaring inadequacy,” decisions regarding the allocation of public funds for education fall within the purview of the legislature, not the courts (57 NY2d at 48-49).

In Reform Educ. Fin. Inequities Today (R.E.F.I.T) v Cuomo, decided the same day as CFE I, we held that because the plaintiffs did not claim specifically that students in their district were receiving less than a sound basic education, but instead attacked the gross inequality of funds available to school districts around the state, their pleadings could not survive a motion to dismiss (86 NY2d 279, 285 [1995] [“Giving plaintiffs’ submissions the benefit of every favorable inference, they simply do not state a claim that these disparities have caused students in the poorer districts to receive less than a sound basic education, which is all that they are guaranteed by our Constitution”]). Likewise, in Paynter v State of New York, decided the same day as CFE II, we upheld the dismissal of the plaintiffs’ complaint for failure to state a cause of action under the Education Article. Although the plaintiffs sufficiently pleaded “that by every measure of student achievement [their] schools do not deliver a sound basic education,” we found their complaint deficient because they had not “allege [d] that the substandard academic performance in their schools stem[med] from any lack of funds or inadequacy in the teaching, facilities or instrumentalities of learning” (100 NY2d 434, 438-439 [2003]).

More recently, in New York Civ. Liberties Union v State of New York, we rejected plaintiffs’ claims premised on failures in individual schools, noting the importance of pleading specific “district-wide” failures caused by inadequate state funding (see 4 NY3d 175, 178, 181 [2005] [NYCLU]). In NYCLU, we held that although the complaint alleged that “[t]he State of New York does not provide adequate financial resources to afford all students throughout the State the opportunity for a sound basic education . . . , even construing plaintiffs’ allegations liberally . . . the complaint fails to state a cognizable claim” (id. at 180 [internal quotation marks omitted]). “Thus, because school districts, not individual schools, are the local units responsible for receiving and using state funding, and the State is responsible for providing sufficient funding to school districts, a claim under the Education Article requires that a district-wide failure be pleaded” (id. at 182).

Here, plaintiffs ask us to find that they have stated a claim in “another way,” because “[d]istrict-based claims of inadequate inputs and outputs are one, but, as this case shows, cannot be the only, way to plead an Education Article violation” (brief for plaintiffs-respondents at 3). Although our CFE and other Education Article decisions do not “delineate the contours of all possible Education Article claims” (Paynter, 100 NY2d at 441), they evidence an important underlying proposition. Because public schools are funded through a mixture of state and local funds, and because “the Education Article enshrined in the Constitution a state-local partnership in which ‘people with a community of interest and a tradition of acting together to govern themselves’ make the ‘basic decisions on funding and operating their own schools’ ” (Paynter, 100 NY2d at 442, quoting Levittown, 57 NY2d at 46), it cannot ordinarily be inferred that deficiencies in funding or educational services in one school district are mirrored in another. Therefore, allegations of deficiencies in one, several, or many school districts would not ordinarily serve as sufficient allegations about others. Our CFE decisions can be understood as a way to bring a challenge under the Education Article even if the State’s system overall is designed to provide a sound basic education, but such challenges must be brought on a school district level. Plaintiffs must plead some facts as to each school district they claim falls below the constitutional minimum. Here, drawing every inference in favor of the NYSER plaintiffs, it is not possible to infer that all — or even most — school districts in the state fall below the constitutional floor, and plaintiffs concede that many school districts are not deficient.

The Appellate Division reasoned that the NYSER plaintiffs properly pleaded a statewide claim because “actionable deficits identified in one district will require modification of the formula, necessarily affecting calculation of funding for all districts” (143 AD3d at 117). That observation, while perhaps true, provides no justification for allowing the NYSER plaintiffs to proceed with their third and fourth causes of action on a statewide basis.

The NYSER plaintiffs also argue that defendants have a "self-executing” constitutional obligation to comply with the Education Article, and that by requiring plaintiffs to plead facts on a district-by-district basis, we would shift the burden to prove a violation onto students. Of course, all members of the legislative and executive branches take an oath to uphold the constitutions of the United States and New York, and have a duty to discharge their responsibilities faithfully (see NY Const, art XIII, § 1). However, as with every such obligation, if a plaintiff claims a violation, it is up to that plaintiff to prove the violation. Moreover, in the CFE litigation, the plaintiffs sought a variety of forms of ongoing injunctive relief as part of the remedy for the constitutional violation. Although the trial court ordered, inter alia, that the legislature conduct costing-out studies every four years and determine the cost of constitutional compliance on a district-by-district basis statewide, we affirmed the Appellate Division’s vacatur of the former and rejected the imposition of the latter (see CFE III, 8 NY3d at 32). Thus, the very “duty” we rejected in CFE III is the foundation of plaintiffs’ argument that they should be excused from pleading specific deficiencies and causation as to each district in which they alleged defendants have failed to provide a sound basic education.

Plaintiffs contend that requiring proof on a district-by-district basis could be difficult, if not impossible, and therefore reason they should be able to prove a statewide violation by adducing evidence as to some districts of their choosing. However, our precedent requires district-specific pleading for claims of this nature, which plaintiffs here have set forth for New York City and Syracuse only.

V.

We now turn to the specific allegations and individual causes of action in each pleading.

A. The NYSER Complaint

The NYSER plaintiffs’ first cause of action seeks to hold defendants liable because they allegedly “have failed to comply with the specific decisions and orders of the Court of Appeals in CFE I, CFE II, and CFE III” However, that litigation is concluded. Our CFE decisions do not presently impose any injunctive remedy on defendants. In CFE II, we directed the State to ascertain costs and ensure a system of accountability, struck the lower courts’ other remedial orders, and limited our order to New York City schools. In CFE III, we repeatedly stated that the $1.93 billion estimate proffered by the State satisfied our mandate in CFE II. We noted that the State was not “limited to the minimum, or ‘floor,’ of what it takes to provide a sound basic education” (CFE III, 8 NY3d at 33 [Rosenblatt, J., concurring]). But we in no way imposed any further funding requirements on the State. We recognized in CFE III, and reiterate here, that “[w]e cannot ‘intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches’ ” (CFE III, 8 NY3d at 28, quoting Klostermann v Cuomo, 61 NY2d 525, 541 [1984]). Our deference “is especially necessary where it is the State’s budget plan that is being questioned” (id.).

In CFE III, we expressly “rejected] as unnecessary” the Appellate Division’s multi-year funding directive (CFE III, 8 NY3d at 27). Likewise, we did not, as the Appellate Division mistakenly concluded, direct that the State must increase its spending annually by a “built-in provision for annual updating for inflation by reference to a specified inflation index” (143 AD3d at 114). Thus, the NYSER plaintiffs’ second cause of action, based upon the State’s alleged violation for failing to comply with its own 2007 proposed funding, which exceeded the $1.93 billion we approved in CFE III, must also be dismissed.

Although our CFE decisions may well be valuable to the NYSER plaintiffs in framing their case as they proceed, they cannot state a claim based on noncompliance with orders arising from the CFE litigation, because that litigation has ended. The NYSER plaintiffs cannot state a claim for violation of the Education Article by pleading that state funding levels are not as great as they would have been under methods of calculation proposed by the State during the CFE litigation, or contemplated by the Budget and Reform Act of 2007, because those allegations do not state a constitutional violation, even though those facts may be relevant to support the NYSER plaintiffs’ fourth cause of action. Furthermore, even if some injunctive provision of the CFE litigation remained, the parties to that lawsuit — not this one — would need to move for contempt in the original proceeding. To sustain a motion for contempt, “a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed. Moreover, the party to be held in contempt must have had knowledge of the order . . . [and] prejudice to the rights of a party to the litigation must be demonstrated” (McCain v Dinkins, 84 NY2d 216, 226 [1994] [citations omitted]).

As to the NYSER plaintiffs’ third cause of action, the State does not appeal that portion of the Appellate Division’s decision permitting that claim to proceed, as modified, for the New York City and Syracuse school districts. Thus, we do not decide whether the third cause of action, limited to allegations of a lack of accountability mechanisms, is a proper independent cause of action.

In their fourth cause of action, plaintiffs generally allege that the State defendants “have failed and are continuing to fail to provide ... an opportunity for a sound basic education in violation of” the Education Article. As we have held, “[a]n Education Article claim . . . requires a clear articulation of the asserted failings of the State, sufficient for the State to know what it will be expected to do should the plaintiffs prevail” CNYCLU, 4 NY3d at 180). The NYSER plaintiffs have sufficiently alleged deficient inputs and outputs with respect to New York City and, although in less detail, Syracuse, that give defendants adequate notice of what a potential remedy could require of them. In that regard, the NYSER complaint alleges deficient inputs (a lack of qualified teachers and principals, low levels of support staff, outdated curricula, unsuccessful English as a Second Language programs, overly large class sizes, lack of basic materials such as textbooks and chalk, a reduction in after-school and summer programs, and inadequate and unclean buildings and facilities) with respect to Syracuse and New York City, with some degree of specificity. The complaint further alleges deficient outputs with respect to those school districts (poor standardized test proficiency, high failure and drop-out rates, poor English proficiency, and inability to meet basic requirements to gain admission to city or state colleges because their high schools do not offer basic course requirements).

The complaint also alleges a causal link between inadequate state funding and the failure of those two school districts to provide a sound basic education. Just as the CFE plaintiffs did, going forward, plaintiffs here will need to adduce evidence at trial proving, on the basis of current data, that the State has breached its constitutional obligation to provide a sound basic education to students in public schools. Should plaintiffs be successful, it will be up to the State to craft an appropriate response, subject to judicial review, because the courts have “neither the authority, nor the ability, nor the will, to micromanage education financing” (CFE II, 100 NY2d at 925).

In contrast, aside from New York City and Syracuse, the complaint alleges merely that other unspecified districts throughout the State have, on “average,” been forced to reduce instructional expenditures per student and have, as a result, experienced poor student performance. The very allegations the dissent quotes to illustrate the complaint’s purported sufficiency instead highlight its patent failure. The allegations that “school districts on average have reduced their instructional expenditures per pupil by approximately 7%”; that adequate “reserves” should be “5-10% of a school district’s spending levels,” but “in 2012-2013, 28 school districts had less than 1% of their budget available”; or that “87 school districts in New York State are currently in conditions of financial stress,” assert financial — not educational — problems (see Levittown, 57 NY2d at 47-48 [“If what is made available by this system (which is what is to be maintained and supported) may properly be said to constitute an education, the constitutional mandate is satisfied”]). The NYSER allegations do not allege a causal relationship between the unspecified educational deficiencies and a lack of state funding, or identify any specific districts, such that the State might be put on notice as to the relief sought (see CFE II, 100 NY2d at 928 [declining to order any relief or state action as to districts other than New York City, because “(th)ere the case presented to us, and consequently the remedy, (was) limited to the adequacy of education financing for the New York City public schools, though the State may of course address statewide issues if it chooses”]).

Further general allegations that “high need school districts have been unable to comply with many state mandates and provide their students the opportunity for a sound basic education at the current funding levels,” though at least alleging an educational deficiency in conclusory terms, do not indicate what or how many “high-need” districts there are, the state mandates with which they have been unable to comply, or the causal link we have required to be pleaded. Certainly, as the dissent points out, “the factual allegations for New York City and Syracuse are more robust than for the remaining districts” — because the only school districts mentioned in the complaint other than those two are Buffalo, Rochester, and Yonkers, which are mentioned, e.g., because their residents do not “directly pay school taxes” and receive a subsidy less than the School Tax Relief Program (STAR) payments made to other districts, or to point out that Buffalo, Rochester and Yonkers are not among the 87 school districts determined to be “in conditions of financial stress” by the Comptroller.

B. The Aristy-Farer Complaint

The Aristy-Farer plaintiffs argue that the State’s withholding of approximately $290 million in 2012, as a penalty for New York City’s failure to comply with the APPR program, violated the Education Article. Their complaint focuses almost exclusively on that penalty, and contains conclusory statements alleging that New York City students do not receive a sound basic education. Those conclusory allegations are insufficient to state a claim. The Aristy-Farer complaint’s first cause of action is not viable because it does not contain any fact-specific allegations regarding deficient inputs or outputs in the New York City School District. The complaint does not identify any district-specific reduction in teaching or support staff, depletion of supplies, or inadequate learning facilities. Further, although the complaint makes a perfunctory reference to graduation rates and poor testing scores, it does not causally relate either of those allegations to input deficiencies caused by insufficient funding.

The Aristy-Farer complaint focuses on the State’s withholding of approximately $290 million in 2012 as a penalty for New York City’s failure to comply with the APPR program. The Aristy-Farer plaintiffs contend that the State’s withholding violated the Education Article. However, as noted above, the Education Article does not mandate a particular dollar amount of state funding, and the complaint contains no allegation of causation linking the State’s one-time withholding of $290 million and any alleged failure to provide a sound basic education.

The Appellate Division held the first cause of action should proceed, not because it independently contains sufficient allegations, but because it “contains some of the same allegations as the much more detailed NYSER complaint regarding inputs and outputs . . . [and because the] actions involve the same nucleus of operative facts, have widely overlapping claims, and have been consolidated” (143 AD3d at 119-120). As the Appellate Division recognized, the Aristy-Farer complaint lacks the specificity of the NYSER complaint, and its remaining cause of action, even when read liberally, is too conclusory to survive a motion to dismiss (see generally Simkin v Blank, 19 NY3d 46, 52 [2012] [allegations consisting of bare legal conclusions are not entitled to be accepted as true on a motion to dismiss]).

The Aristy-Farer complaint’s first cause of action lacks sufficient factual “allegations that the State somehow fails in its obligation to provide minimally acceptable educational services [and therefore is] insufficient to state a cause of action under the Education Article” (Paynter, 100 NY2d at 441). “Fundamentally, an Education Article claim requires two elements: the deprivation of a sound basic education, and causes attributable to the State” (NYCLU, 4 NY3d at 178-179). The Aristy-Farer plaintiffs have failed to satisfy either of those requirements. A pleading is not an empty formality, and the Aristy-Farer plaintiffs chose to file a separate lawsuit with a separate theory and separate, but highly conclusory, allegations. That the NYSER and Aristy-Farer actions were consolidated on appeal to the Appellate Division does not relieve either set of plaintiffs of the legal obligation to plead with specificity, and the Aristy-Farer plaintiffs cannot rely on the NYSER allegations to support their separate pleading. Thus, the order of the Appellate Division permitting the Aristy-Farer plaintiffs to proceed with their first cause of action should be reversed.

VI.

Conclusion

The Aristy-Farer plaintiffs have not stated any cognizable claims, and their complaint should be dismissed in its entirety. The NYSER plaintiffs’ first and second causes of action should be dismissed; their third cause of action, as modified by the Appellate Division, and fourth cause of action, should proceed as they relate to New York City and Syracuse only.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified in accordance with this opinion, without costs, and, as so modified, affirmed, and the certified question answered in the negative.

Rivera, J.

(concurring in part, dissenting in part). I agree for the reasons stated by the majority that the Aristy-Farer complaint should be dismissed in its entirety because it fails to plead a cognizable claim. However, because the complaint filed by the New Yorkers for Students’ Educational Rights (NYSER) adequately pleads several causes of actions against the State for violations of the Education Article as to all districts, I would affirm the Appellate Division as it relates to this action.

I.

The State Constitution’s Education Article mandates that “[t]he legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated” (NY Const, art XI, § 1). This Court has interpreted that language to require “a Statewide system assuring minimal acceptable facilities and services in contrast to [an] unsystematized delivery of instruction” (Board of Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d 27, 47 [1982]), and “that the opportunity for a sound basic education be provided to all” (New York Civ. Liberties Union v State of New York, 4 NY3d 175, 178 [2005] [NYCLU]). To the extent the State’s obligation involves financing public education, the Court has not determined precisely how much money the State must spend to comply with its constitutional mandate because such a determination “presents issues of enormous practical and political complexity” best left to the other branches of government (Levittown, 57 NY2d at 38-39). However, the Court has maintained that “it is the province of the Judicial branch to define, and safeguard, rights provided by the New York State Constitution, and order redress for violation of them” (Campaign for Fiscal Equity v State of New York, 100 NY2d 893, 925 [2003] [CFE II]).

The Court’s decisions in the trilogy of Campaign for Fiscal Equity (CFE) cases explain the State’s financing obligations under the Education Article and the methods by which plaintiffs may bring claims challenging the constitutionality of state financing. These decisions further provide the context for the instant appeal. In the first CFE case, the Court held that a group of plaintiffs had pleaded a sustainable claim under the Education Article and a valid cause of action under federal law as provided by Civil Rights Act of 1964, title Vi’s implementing regulations (Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 312 [1995] [CFE I]). The Court concluded that there is a “constitutional floor with respect to educational adequacy” under the Education Article, and that the Court is “responsible for adjudicating the nature of [the State’s] duty” (id. at 315). That “constitutional floor,” “requires the State to offer all children the opportunity of a sound basic education” (id. at 316). CFE I established that a cause of action under the Education Article is properly stated where it alleges that “minimally acceptable educational services and facilities are not being provided in plaintiffs’ school districts” (id. at 316). The Court further explained that “[a] relevant issue at this point is whether plaintiffs can establish a correlation between funding and educational opportunity” (id. at 318). The plaintiffs prevailed at trial, but the Appellate Division reversed.

On appeal, this Court concluded that the State had deprived schoolchildren in New York City of a “sound basic education” (CFE II, 100 NY2d at 918-919). The Court upheld the trial court’s findings that the “inputs” (teaching, facilities, and instrumentalities of learning) were insufficient as reflected by the deficiencies in the “outputs” (test results and both graduation and dropout rates) (id. at 908). The Court held that “[r]eforms to the current system of financing school funding and managing schools should address the shortcomings of the current system by ensuring, as a part of that process, that every school in New York City would have the resources necessary for providing the opportunity for a sound basic education” and “the new scheme should ensure a system of accountability to measure whether the reforms actually provide the opportunity for a sound basic education” (id. at 930). The urgency of the decision is reflected in the Court’s order granting the State 13 months to comply and develop the mandated reforms (id.).

In accordance with the directives in CFE II, “Governor Pa-taki issued an executive order creating the New York State Commission on Education Reform, charged with recommending, to the Executive and the Legislature, education financing and other reforms” (Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14, 21-22 [2006] [CFE III]). The Commission calculated “sound basic education spending estimates for each school district” and compared that figure to the amount the State had actually spent, thereby determining “spending gaps” (id. at 23 [internal quotation marks omitted]). In New York City, the spending gap was $1.93 billion (id. at 24). Supreme Court convened a judicial referee panel to determine whether these reforms complied with CFE II (id. at 25). The panel modified the Commission’s findings, replacing some parts of its analysis, adopting others, and ultimately determining that the spending gap in New York City was $5.63 billion, not $1.93 billion as the State had found (id. at 25).

On appeal in CFE III, this Court held that “Supreme Court erred by, in effect, commissioning a de novo review of the compliance question” (id. at 27). The Court explained that the role of the courts is not “to determine the best way to calculate the cost of a sound basic education in New York City schools, but to determine whether the State’s proposed calculation of that cost is rational” (id.). The trial court “should have proceeded to determine whether the state plan . . . incorporated that sound basic education expenditure in its proposed budget and would, if enacted, ensure a system of accountability” (id. at 29-30). Holding that the “state budget plan had already reasonably calculated [the] cost [of a sound basic education],” the Court upheld the State’s plan and “declare [d] that the constitutionally required funding for the New York City School District includes additional operating funds in the amount of $1.93 billion” (id. at 27, 31).

Here, the NYSER plaintiffs contend that the State has not complied with its constitutional obligation under the Education Article, as clarified by this Court in its CFE cases, to provide adequate funding to ensure a sound basic education to all of New York State’s public school children. Plaintiffs do not, as the majority argues, contend that “they should be able to prove a statewide violation by adducing evidence as to some districts of their choosing” (majority op at 512). The core of plaintiffs’ argument is that “hundreds of thousands of students in the City of New York and in other districts throughout the State of New York are currently being denied the opportunity for a sound basic education” as a result of the State’s failure to implement the legislative solutions it passed in response to the holdings in the CFE cases. This is concededly a novel theory because, first, it is based on the State’s duty to ascertain the “actual costs” of providing a sound basic education, and, second, because it alleges that the State’s failure has impacted students throughout the state, not just within one or more named districts. A fresh take on the complex and persistent problems of educational equity and public school underfinancing does not render the complaint deficient so long as the claims are adequately pleaded, as they are here.

II.

On a motion to dismiss, “our well-settled task is to determine whether, ‘accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated’ ” (CFE I, 86 NY2d at 318 [citations omitted]). Plaintiffs have the right “to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets a minimal standard necessary to resist dismissal of a complaint” (Armstrong v Simon & Schuster, 85 NY2d 373, 379 [1995]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). So long as, “on any reasonable view of the facts stated,” plaintiffs are entitled to relief, “our inquiry is complete and we must declare the complaint legally sufficient” (CFE I, 86 NY2d at 318).

“Fundamentally, an Education Article claim requires two elements: the deprivation of a sound basic education, and causes attributable to the State” {NYCLU, 4 NY3d at 178-179). Such a claim “requires a clear articulation of the asserted failings of the State, sufficient for the State to know what it will be expected to do should the plaintiffs prevail” (id. at 180).

In my view, plaintiffs made this threshold showing. In the first cause of action, the NYSER plaintiffs allege that the “State defendants have failed to comply with the specific decisions and orders of the Court of Appeals in CFE I, CFE II, and CFE III” In the second cause of action, they allege that the “State defendants have failed to provide the individual plaintiffs and numerous other students in school districts throughout the State of New York the opportunity for a sound basic education.” In the third cause of action, plaintiffs allege, in part, that the State defendants have violated the Education Article by failing to “respond appropriately to changes in fiscal and educational conditions and to maintain a state system of education in which all of the students receive the opportunity for a sound basic education.” Lastly, the NYSER plaintiffs’ fourth cause of action alleges that the State has failed to provide students statewide with an opportunity for a sound basic education.

Plaintiffs support these causes of action with: (1) a detailed account of the State’s failure to implement the statewide plan it had adopted in response to the CFE cases; and (2) facts concerning the fiscal and educational deficiencies across school districts. Admittedly, the factual allegations for New York City and Syracuse are more robust than for the remaining districts. That plaintiffs here allege extra and more specific deficiencies in certain districts, however, does not preclude them from claiming that the State has failed to deliver a constitutionally adequate system statewide. Furthermore, plaintiffs still plead facts as to all school districts, which would entitle them to relief if true. In addition to the allegations specific to New York City and Syracuse, plaintiffs claim that because of extensive reduction in state aid to public schools, “school districts on average have reduced their instructional expenditures per pupil by approximately 7%.” Adequate “reserves” should be “5-10% of a school district’s spending levels,” but “in 2012-2013, 28 school districts had less than 1% of their budget available.” Further, the complaint alleges that “87 school districts in New York State are currently in conditions of financial stress” and “[e]ven with major efforts to eliminate inefficiencies and adopt cost-effective practices, high need school districts have been unable to comply with many state mandates and provide their students the opportunity for a sound basic education at the current funding levels.”

Furthermore, these claims aside, it is enough that plaintiffs allege that, “[following the recession of 2008, the State failed to carry out its commitment to provide the amount of state aid that the governor and the legislature had determined to be necessary to provide all students the opportunity for a sound basic education.” The NYSER plaintiffs lay out a detailed history of the CFE litigation and the various legislative responses that the State has failed to implement. Affording the complaint every favorable inference, as we are obliged to do at this stage of the litigation, plaintiffs’ first, second, and fourth causes of action, and that part of the third challenging the adequacy of the accountability mechanisms, all sufficiently plead cognizable claims under the Education Article.

The majority’s characterization of plaintiffs’ claims as overly general and unspecified (majority op at 515, 516) is a consequence of the majority’s application of a heightened pleading standard, and not any flaw in the complaint. The majority states that the NYSER complaint asserts “financial — not educational — problems” (majority op at 515). Yet, the complaint alleges that students have been deprived of a sound basic education and outlines a number of “new mandates” meant to protect students’ education that are unaffordable under current funding levels. The majority further contends that the NYSER complaint does “not allege a causal relationship between the unspecified educational deficiencies and a lack of state funding, or identify any specific districts, such that the State might be put on notice as to the relief sought” (majority op at 515). However, the complaint expressly alleges that: (1) the State has failed to provide the state aid it committed in response to the CFE decisions; and (2) that “hundreds of thousands of students” have been denied the opportunity for a sound basic education because of the “extensive reductions in state aid to public schools.” The clear inference to be drawn from these allegations is that it is precisely these state financing failures that are responsible for the educational deficiencies alleged. As our cases make clear, at this stage of the litigation, plaintiffs are to be accorded “the benefit of every possible favorable inference” (Leon v Martinez, 84 NY2d 83, 87 [1994]) and whether they will succeed on the merits “is not part of the calculus” (EBC I, 5 NY3d at 19). We are concerned only with whether plaintiffs may be afforded relief “on any reasonable view of the facts stated,” and if so, “we must declare the complaint legally sufficient” {CFE I, 86 NY2d at 318). The majority’s reading of the complaint is inconsistent with this well-established, minimal pleading requirement {Leon, 84 NY2d at 87). Furthermore, because the complaint states clearly the proposed remedy — fulfillment of the State’s obligation to: (1) ascertain the amount required to provide a sound basic education; (2) pass legislation consistent with that figure; and then (3) abide by it, as imposed by the CFE decisions — the State defendants are on notice as to the relief sought, contrary to the majority’s assertion.

Although the majority maintains otherwise (majority op at 510 n 5), its ruling essentially restricts school funding litigation to district-by-district challenges. The majority contends that, “[o]ur prior Education Article cases have clearly and consistently stated that the type of claims brought here must be pleaded with district specificity to be viable” (majority op at 509-510) and “[o]ur CFE decisions can be understood as a way to bring a challenge under the Education Article even if the State’s system overall is designed to provide a sound basic education, but such challenges must be brought on a school district level” (majority op at 511).

Our case law neither supports this narrow interpretation of school financing challenges, nor does it require that we adopt a pleading regime exclusively dependent on district-specific claims. In NYCLU, the Court held that the complaint failed to state a cause of action because plaintiffs’ “requested relief here bypasses the districts and instead seeks to mandate that the State provide money or other resources directly to individual schools” (4 NY3d at 182). Contrary to the majority’s suggestion, the Court’s holding in that case was therefore not premised on the fact that plaintiffs erroneously pleaded statewide failures, but instead on the fact that they erroneously pleaded individual-school failures. The Court’s holding in Reform Educ. Fin. Inequities Today (R.E.F.I.T.) v Cuomo (86 NY2d 279 [1995] [REFIT]) similarly does not shut the courthouse door to statewide claims. In that case, plaintiffs alleged an Education Article claim on the basis of a “disparity in the amount of money spent per pupil in property-poor as compared to property-rich school districts” (86 NY2d at 283). Having already held that “[t]he Education Article does not by its express terms contain an egalitarian component,” the Court was bound to conclude that the complaint failed to state a cause of action (id. at 284). Furthermore, the CFE cases, as with NYCLU and REFIT, “addressed the sufficiency of the pleadings then before us and had no occasion to delineate the contours of all possible Education Article claims” (Paynter v State of New York, 100 NY2d 434, 441 [2003]). Those cases were limited to their facts and do not expressly prohibit plaintiffs here from bringing claims grounded in violations having a statewide impact. Nor do they provide a basis to limit the way plaintiffs articulate post-CFE school financing claims.

Furthermore, there is no judicial precedent for the majority’s suggestion that the State defendants would only be bound by the CFE decisions if there had been some injunctive relief ordered in those cases (majority op at 512-513). This argument is neither relied on by the State nor discussed by the courts below. For good reason — the argument has no application in this appeal. As the Court has explained, “it is the province of the Judicial branch to define, and safeguard, rights provided by the New York State Constitution” (CFE II, 100 NY2d at 925). When the Court makes such a constitutional determination, the State is bound by it, injunction or not. It bears repeating that a plaintiff may — as with any party alleging injury— rely on our explications of the State’s constitutional obligation under the Education Article when asserting a subsequent violation of the law.

III.

School financing cases are difficult, complex, and require expansive resources (see Michael Heise, Equal Educational Opportunity Hollow Victories, and the Demise of School Finance Equity Theory: An Empirical Perspective and Alternative Explanation, 32 Ga L Rev 543, 580 [1998] [“the legal operationalization of (school finance) equity, at least at the public level involving school resources, has proven notoriously complex and difficult”]). The CFE litigation illustrates the challenges inherent in these cases. Beginning in 1995, the CFE cases were litigated for over a decade, with the last of the CFE cases being decided in 2006. The actions involved numerous appeals and remands, and it was not until a year after the final case was litigated that the State developed its legislative response. In the interim, generations of children were denied the education guaranteed by our State Constitution. Against the tide of this Court’s prior decisions, the majority’s holding makes it all but impossible to address constitutional violations other than through burdensome piecemeal litigation. The result will be that meritorious claims will go unfiled, due in part to a lack of litigation resources and the inability of parents and children to wait decades for a possible victory from which they will never benefit directly. Yet, the stakes are high. At issue in these cases is the constitutional guarantee to every child in public school that the education funded by the State provides them with the basic skills they need to participate meaningfully in society. Education is unique because of its importance “in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child” (Plyler v Doe, 457 US 202, 221 [1982]). Education is the great leveler of social and economic inequalities, and “[i]n America, education is still the great equalizer” (Arne Duncan, US Secretary of Education, 2011).

The Court is “responsible for adjudicating the nature” of the State’s constitutional obligations (CFE I, 86 NY2d at 315). When the Court held in CFE II that the State was required to “ascertain the actual cost of providing a sound basic education” (100 NY2d at 930), that mandate was not limited to the Budget and Reform Act of 2007 — it was a constitutional requirement that survives the CFE litigation. The State was not free to attempt compliance and then abandon those efforts. It is for the legislature to determine how to comply with CFE, but compliance is undeniably required. Insofar as the NYSER complaint makes specific factual allegations that the State has failed to comply with the Court’s decisions in the CFE cases, and as a result students have not received a sound basic education, the claims meet the “minimal standard necessary” to survive the State’s motion to dismiss (Armstrong, 85 NY2d at 379).

Chief Judge DiFiore and Judges Stein, Fahey and Garcia concur; Judge Rivera concurs in part and dissents in part in an opinion; Judge Feinman taking no part.

Order, insofar as appealed from, modified in accordance with the opinion herein, without costs, and, as so modified, affirmed and certified question answered in the negative.

      . Any reference to “the Constitution” herein refers to our New York State Constitution.

      . We refer to the “complaints.” The operative pleading document in the NYSER action is their amended complaint; for the Aristy-Farer action, it is their second amended complaint.

      . The Aristy-Farer plaintiffs do not cross-appeal the Appellate Division’s decision, thus, the dismissal of their second and third causes of action is not before us.

      . As discussed above, the Appellate Division modified the NYSER plaintiffs’ third cause of action and dismissed the Aristy-Farer plaintiffs’ second and third causes of action.

      . We do not foreclose the possibility that allegations sufficient to satisfy our CFE “gross educational inadequacies” test (CFE I, 86 NY2d at 319) could be made on a statewide basis. For example, if the State were to stop funding education after elementary school, or would not allow state monies to be spent on math education, a plaintiff might not need to allege district-by-district inputs and outputs to challenge such policies. Here, however, the NYSER plaintiffs do not allege the existence of any such statewide rule or policy, but instead contend that, in New York City, Syracuse, and various unspecified school districts around the state, students are not receiving a sound basic education. That claim requires fact-specific district-by-district allegations of the deprivation of a sound basic education (and later, proof).

      . The dissent evidences a fundamental misunderstanding of our holding here, treating it as if it bars plaintiffs, in pursuing their surviving claim, from the use of facts relating to the prior CFE litigation and its aftermath, e.g., that “the State failed to carry out its commitment to provide the amount of state aid that the governor and the legislature had determined to be necessary,” or that the State “abandon[ed] those efforts.” Those facts may well be evidence in this case, but they themselves are neither a cause of action nor the basis for enforcement of nonexistent injunctive relief. Likewise, neither our decision today nor the CFE litigation prevents these plaintiffs — who are not the CFE plaintiffs — from obtaining different relief, including injunctive relief, if warranted based on the proof they adduce and the findings of the lower courts.

      . The Appellate Division dismissed the third cause of action except to the extent that it challenges the adequacy of the State’s accountability mechanisms (143 AD3d 101, 118 [1st Dept 2016]). The majority allows the remainder of the third cause of action to proceed as to New York City and Syracuse because the State does not appeal that part of the Appellate Division’s order (majority op at 514). For the reasons I discuss, I would also allow this claim to proceed, but with respect to all school districts in the state.

      . Pursuant to the Court’s order, the State could, and did, adopt a statewide measure to ensure compliance with its constitutional obligations under the Education Article to provide a sound basic education to every public school student in the state.

      . The State’s abandonment of its efforts to comply with the CFE cases is therefore not solely potential evidence for a future case, as the majority contends (majority op at 514 n 6), but is itself a cause of action because it represents a constitutional violation.


source: Caselaw Access Project

author: Garcia, J. Wilson, J.

license: Public Domain

text:
    [81 NE3d 828, 59 NYS3d 294]
    The People of the State of New York, Respondent, v Miguel Viruet, Appellant.
    Argued April 27, 2017;
    decided June 6, 2017

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Leila Hull of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Nancy Fitzpatrick Talcott, Robert J. Masters, John M. Castellano, Joseph N. Ferdenzi and Sharon Y. Brodt of counsel), for respondent.
   OPINION OF THE COURT

Garcia, J.

Shortly after a fatal shooting took place, a law enforcement agent collected video surveillance footage of the crime scene but that evidence was lost prior to trial. We now consider whether, as a result, defendant was entitled to an adverse inference jury instruction. We hold that, under the circumstances, the trial court erred in failing to provide such an instruction, but that this error was harmless. For that reason, we affirm.

Defendant was charged with, among other things, intentional murder in the second degree and two counts of criminal possession of a weapon in the second degree in connection with a late-night shooting outside a Queens nightclub. Earlier on the evening of the shooting, defendant’s brother, Stephen, was struck by an unknown assailant outside of the club. When the club’s bouncer was unable to identify the assailant, Stephen called defendant and asked him to come to the club. According to the bouncer, a short time later defendant pulled up to the front of the club in a dark colored Honda, got out, and immediately confronted him, demanding to know who hit his brother. Several people from inside the club surrounded defendant prompting him to drive off. As defendant drove away, however, he warned that he was “coming back.” Approximately 10 to 15 minutes later, someone near the club yelled “they’re back.” At that moment, the victim, the bouncer, and another witness, were standing by the front entrance of the club when an individual across the street fired nine shots in their direction. The 19-year-old victim, who was trying to get through the door into the club, was shot and died a short time later.

The club’s bouncer identified defendant in a photo array hours after the shooting and in a lineup following defendant’s arrest approximately two months later. He testified at trial that although he did not see the shooter’s face completely, he “could tell by what [the shooter] was wearing and the way he looked [that] it was the same person that was driving the [Honda].” However, he admitted on cross-examination that despite his prior identifications, he could not say for sure whether defendant was the shooter by looking at his face because he “didn’t see across the street.” The other witness, in identifying defendant, testified that he had a “good view” of defendant at the time of the shooting, could see where the bullets were coming from, and was able to observe defendant’s face. Although the witness did not know defendant, he knew defendant’s brother “from around the way,” and had seen him on two or three prior occasions.

The People also called one of defendant’s childhood friends who had been arrested approximately two months after the shooting on an unrelated gun charge. Pursuant to a plea deal, the witness agreed to testify for the prosecution at defendant’s trial. According to his detailed testimony, the day after the shooting, defendant confessed that he and his brother were involved in an altercation at the club and that defendant had fired his weapon “in th[e] direction” of someone who was yelling at him.

Prior to trial, defendant timely requested disclosure of the club’s surveillance footage from the night of the murder and the District Attorney’s office requested the same from the police department. The arresting officer, Detective Ragab, who just hours after the shooting viewed and obtained a copy of the video taken from a camera located outside the club’s front door, could not locate the video. Detective Ragab explained that he did not voucher the video pursuant to police department policy because he “just did not get to it.” Though he attempted to obtain another copy, the club had shut down and he could not locate the owner.

Several witnesses nevertheless provided some information about the lost video. One witness testified that the club had a “pretty good surveillance system” with a camera located by the awning above the door showing the front of the bar. Detective Ragab testified that he watched the video and could see people going in and out of the club during the course of the evening as well as people running inside at the time of the shooting. He claimed the area covered by the camera “barely leaves the sidewalk” but acknowledged that there was no way without the video to determine how far out the coverage extended. The bouncer — who had also watched the video — testified that the footage captured the victim, the other trial witness, and him at the front door as the shots were fired. He also testified that the camera did not face in the direction of the location where he saw defendant firing his weapon. There was no testimony regarding whether the earlier confrontations with the bouncer were captured on the surveillance footage.

At a pre-charge conference, defense counsel requested an adverse inference charge based on the missing video, arguing that there was evidence the video might have captured the events of the night and that without it, it was impossible to determine precisely what was on it, and that the jury should be informed that they could assume it was beneficial to defendant. The court denied the request for the charge, stating that it would only be appropriate if the evidence, had it been produced, would have been favorable to defendant. The court explained that the charge was not warranted because there was no testimony that the video would have shed light on the identity of the shooter. The jury convicted defendant of intentional murder and both gun possession counts.

The Appellate Division unanimously affirmed, holding that the lower court “properly declined to give an adverse inference charge” because “[t]here was no evidence that the video camera recorded anything relevant to the case, and the evidence suggested otherwise” (People v Viruet, 131 AD3d 714, 715 [2d Dept 2015]). A Judge of this Court granted leave to appeal (26 NY3d 1093 [2015]) and, for the reasons discussed below, we now affirm.

Defendant relies on our decision in People v Handy, pointing to our holding that “when a defendant in a criminal case, acting with due diligence, demands evidence that is reasonably likely to be of material importance, and that evidence has been destroyed by the State, the defendant is entitled to an adverse inference charge” (20 NY3d 663, 665 [2013]). In such circumstances, the charge is no longer “discretionary,” but is “mandatory upon request” (People v Blake, 24 NY3d 78, 82 [2014]). We agree that the rule in Handy applies here and that failure to give the instruction was error.

Initially, we reject the People’s argument that the video was not discoverable because they did not intend to use it at trial. Given that there is no indication that the prosecutors had the opportunity to view the video prior to their request to the police to locate it in the file, it is difficult to credit the argument that, without ever having seen it, they never intended to use it. Moreover, such a ruling would undermine the incentive for the State to preserve evidence, as it would provide the People with the opportunity to avoid issues of lost evidence by simply claiming they had no intent to use it (see Handy, 20 NY3d at 669). Likewise, we reject the People’s argument that they were not required to preserve the video because, unlike the prison video in Handy, it was created by a third party. Once the police collected the video, the People had an obligation to preserve it (see People v Kelly, 62 NY2d 516, 520 [1984]; CPL 240.20 [1] [g]).

Under these circumstances — where defendant acted with due diligence by requesting the evidence in discovery and the lost evidence was video footage of the murder defendant was charged with committing — it cannot be said that the evidence was not “reasonably likely to be of material importance” (Handy, 20 NY3d at 665). According to the trial testimony, the camera captured the moment when the victim was shot and the location of the two eyewitnesses at the time of the shooting. There was also testimony that the video contained footage of people going in and out of the club throughout the course of the night, making it at least possible that the video captured the earlier incident involving defendant and the bouncer — a key issue in the sequence of events. Contrary to the determination of the Appellate Division, a video of the shooting and of the eyewitnesses at or around the time of the murder is certainly “relevant to the case” (Viruet, 131 AD3d at 715) and is sufficient to satisfy the standard set out in Handy. Moreover, as in Handy, testimony concerning what appeared on the video came in large part from a witness whose own actions “created the need to speculate about its contents” (Handy, 20 NY3d at 669). Accordingly, the trial court erred in failing to give an adverse inference instruction.

However, given the strength of the People’s case, the error was harmless. “Errors of law of nonconstitutional magnitude may be found harmless where ‘the proof of the defendant’s guilt, without reference to the error, is overwhelming’ and where there is no ‘significant probability . . . that the jury would have acquitted the defendant had it not been for the error’ ” (People v Byer, 21 NY3d 887, 889 [2013], quoting People v Crimmins, 36 NY2d 230, 241-242 [1975]).

In addition to the eyewitness accounts described above, the People presented testimony that defendant confessed to the shooting. That witness’s account was consistent with the version of the relevant events provided by the witnesses to the shooting. Additionally, the shooting occurred less than 20 minutes after an earlier altercation at the club ended with defendant threatening to return and immediately after someone nearby yelled “they’re back.” In light of this proof, such a permissive adverse inference instruction to the jurors that they might have but were not required to infer that the lost video would have been favorable to the defense would not have created a “significant probability . . . that the jury would have acquitted . . . defendant” ( Crimmins, 36 NY2d at 241-242).

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

Wilson, J.

(dissenting). I fully concur in the majority’s excellent exposition of why the trial court erred in failing to provide an adverse inference jury instruction. However, I cannot agree that the error was harmless. I therefore would reverse and remit for a new trial.

As explained by the majority, defendant diligently requested from the People a copy of the nightclub’s video footage, which was “reasonably likely to be of material importance” (People v Handy, 20 NY3d 663, 665 [2013]). Defendant was, therefore, entitled to an adverse inference charge, and the charge was “mandatory upon request” (People v Blake, 24 NY3d 78, 82 [2014]). As the majority holds, defendant should have received the requested charge, and the trial court’s failure to do so amounted to error.

I do not agree with the majority, however, that the error was harmless. In situations where evidence of guilt is overwhelming, “an error is prejudicial [to the defendant] ... if the appellate court concludes that there is a significant probability, rather than only a rational possibility, in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred” (People v Crimmins, 36 NY2d 230, 242 [1975]). However, “unless the proof of the defendant’s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error” (id. at 241). “ ‘[Overwhelming proof of guilt’ cannot be defined with mathematical precision” and “does not invite merely a numerical comparison of witnesses or of pages of testimony” (id.). Instead, “the nature and the inherent probative worth of the evidence must be appraised. As with the standard, ‘beyond a reasonable doubt’, [the] recourse must ultimately be to a level of convincement” (id.). Thus, to be overwhelming,

“the quantum and nature of proof, excising the error, [must be] so logically compelling and therefore forceful in the particular case as to lead the appellate court to the conclusion that a jury composed of honest, well-intentioned, and reasonable men and women on consideration of such evidence would almost certainly have convicted the defendant” (id. at 241-242 [internal quotation marks omitted]).

Here, the majority’s recitation of the facts paints an incomplete picture, and effectively substitutes this Court for the trier of fact. Although the evidence would support a jury verdict of guilt, it was not overwhelming.

Much of the People’s proof came from two eyewitnesses— Xavier White, a patron at the nightclub where the shooting took place, and David Herbert, the club’s bouncer — who both testified that they had viewed the gunman only for a few seconds, at most. Defendant was a stranger to both of them. The shooting occurred at nighttime, and the shooter was across the street from the entrance to the bar. Mr. White asserted that, when the gunshots began, he was facing the front of the bar, turned around, saw the shooter for “split seconds,” and then ran back inside the bar. Notably, Mr. Herbert admitted, on cross-examination, that he could not know for sure who the shooter was because he “did not see his face completely” and “didn’t see across the street.”

Messrs. White and Herbert based their identification of the gunman on their interactions with defendant earlier that evening. However, according to their testimony, neither witness had seen defendant prior to that night and both witnesses had only fleeting encounters with defendant earlier in the evening. Further, both witnesses acknowledged that defendant and his brother, Stephen, who had a verbal altercation with Mr. Herbert earlier that evening, looked very much alike. Mr. White testified that defendant and Stephen “looked like twins” and “[t]he only difference [between them] was one being taller and the other being shorter.” Mr. Herbert, when presented with two photo arrays the morning after the shooting, identified defendant as the shooter from one array, but identified a different brother of defendant’s, who was in prison at the time of the shooting, as the individual involved in the earlier altercation from the other array. From the testimony of the two eyewitnesses, a fair conclusion would be that someone with a familial resemblance to defendant was the shooter, but both eyewitnesses demonstrated an inability to distinguish one brother from the other(s).

Those eyewitnesses also offered inconsistent testimony as to the events leading up to the shooting, and provided different descriptions of what defendant wore and the car he drove that night. Mr. Herbert testified that defendant arrived with two other people in a “dark black” or “dark blue” Honda, whereas Mr. White testified that only defendant and a woman exited a “dark green” Honda; he believed no one else was in the car. Mr. White testified that defendant had on a dark blue shirt with a navy stripe, but could not recall if it was a polo or button-down shirt. Mr. Herbert, on the other hand, described defendant as wearing a “blue sweater.” Mr. Herbert stated that he had a conversation with defendant that lasted “probably [a] couple of seconds” and then defendant went to speak with his brother Stephen, who was across the street. According to Mr. Herbert, after defendant came back over to the nightclub, a crowd began to form as he and defendant argued, and then defendant left. Mr. White testified differently: that defendant said he would return.

Robert Garcia, who was with defendant the night of the shooting, also testified at the trial. Robert Garcia stated that he, defendant, and defendant’s girlfriend had been at another club earlier that night. He said that defendant had been frisked prior to entering that club and, upon leaving, police officers stopped him and defendant at a checkpoint around the corner; the officers checked the car and let them proceed. He further testified that he, defendant, and defendant’s girlfriend all arrived at the nightclub in defendant’s car, they stayed there “less than five minutes” in total, and then left with Stephen and Stephen’s friend. Robert Garcia stated that defendant dropped off Stephen and Stephen’s friend approximately three blocks from the nightclub, and then defendant dropped Robert Garcia off approximately 10 blocks from there.

The People also called a cooperating witness, Jesse Garcia, a childhood friend of defendant, who testified that defendant had confessed to returning to the club and shooting a gun. However, Jesse Garcia admitted that, although he met with the police more than once prior to his arrest for an unrelated crime, he did not mention defendant’s confession. Only after Jesse Garcia’s arrest did he disclose defendant’s purported confession, and he then obtained a reduced sentence in exchange for his cooperation. Jesse Garcia’s teary, choking delivery of his testimony against defendant, though consistent with truthfully providing testimony to send his friend to prison, is equally consistent with the guilt accompanying false testimony against his friend offered to reduce his own prison time. Jesse Garcia conceded that he did not know whether defendant actually committed the crime, and further testified that Stephen and defendant looked alike, so it was possible that they could be mistaken for one another at a distance.

Given the standard of proof beyond a reasonable doubt, the totality of the evidence in this case would support a verdict of either guilt or innocence. The evidence established that defendant and his look-alike brother were in the vicinity of the crime; defendant had just been searched at a different club and then by the police, who found no weapon; and defendant’s brother had more of an altercation at the club than did defendant. The majority cites the eyewitness accounts and defendant’s statements made to Jesse Garcia in support of its conclusion that the evidence in this case was overwhelming (see majority op at 533). However, “mistaken eyewitness identifications play a significant role in many wrongful convictions” (People v Santiago, 17 NY3d 661, 669 [2011]; see also People v Marshall, 26 NY3d 495, 502 [2015] [“Wrongful convictions based on mistaken eyewitness identifications pose a serious danger to defendants and the integrity of our justice system”]). Here, the eyewitnesses essentially conceded that defendant and his brother could be mistaken for one another. Further, neither could conclusively say that defendant actually committed the crime — Mr. Herbert did not see the shooter’s face, and Mr. White, who testified that he saw the gunman’s face in the dark from across the street, did so for only “split seconds” before running away into the bar under stressful and chaotic circumstances including gunfire. As to Jesse Garcia, he raised his account of defendant’s confession with the police only after he had been arrested and was facing up to 15 years in prison. A jury could plausibly credit or discredit any of this testimony.

That the shooting occurred 20 minutes after defendant and his brother had left the nightclub lends just as much support, if not more, to the defense’s theory that someone else committed the shooting — namely, Stephen. Defendant dropped off Stephen and Stephen’s friend only three blocks from the nightclub and then drove 10 more blocks to drop off Robert. Additionally, just prior to the shooting, someone yelled “they’re back” — not “he’s back.” Thus, it is just as plausible that Stephen and his friend — who were just a few blocks away — returned to the nightclub, and not defendant.

Where, as here, evidence, even if substantial, is not overwhelming, that ends the harmless error inquiry, and defendant is entitled to a new trial. To act otherwise is to usurp the jury’s role as trier of fact. The question is not whether we think that giving the requested instruction would have changed the outcome: that question is for the jury to determine on retrial, weighing it along with the evidence and other instructions. I therefore respectfully dissent.

Chief Judge DiFiore and Judges Rivera and Fahey concur; Judge Wilson dissents in an opinion in which Judge Stein concurs.

Order affirmed.

       Nothing in the record equates, as the dissent contends, to a concession by the witnesses that “defendant and his brother could be mistaken for one another” (dissenting op at 537).

      . Further, the fact that the trial court allowed defense counsel on cross-examination and later on summation to argue about the absence of the videotape was not an adequate remedy for the court’s failure to give the adverse inference charge. “[A] trial counsel’s appeal to the jury during summation is not ordinarily a substitute for the appropriate jury charge by the court” (DeVito v Feliciano, 22 NY3d 159, 167 [2013]). Indeed, jurors are •routinely admonished that “arguments of counsel made during the course of trial are not evidence and must not be considered by you as such” (1 CJI[NY] 5.13 [Arguments of Counsel]), whereas the court “[is] responsible for explaining the law, not the lawyers .... [Y]our sworn duty as jurors is to follow [the court’s] instructions on the law” (CJI2d[NY] Model Instructions, Final Instructions: Pre-Summation Instructions, available at http:// www.nycourts.gov/judges/cji/5-SampleCharges/CJI2d.Final_Instructions.pdf [accessed May 18, 2017]; see e.g. People v Williams, 29 NY3d 84 [2017]; United States v Kennedy, 234 F3d 1263 [2d Cir 2000]). Thus, we have long recognized that “ ‘[t]he court’s charge is of supreme importance to the accused’” (People v Owens, 69 NY2d 585, 589 [1987], quoting People v Odell, 230 NY 481, 487 [1921]).

      . Although he was facing 5V2 to 15 years in prison, Jesse Garcia pleaded guilty in exchange for a reduced prison sentence of IV2 to 3 years.


author: Wilson, J. Fahey, J. Garcia, J.

text:
    [81 NE3d 835, 59 NYS3d 301]
    The People of the State of New York, Respondent, v Jamar Bethune, Appellant.
    Argued April 27, 2017;
    decided June 8, 2017

      POINTS OF COUNSEL

      Ryan G. Blanch, New York City, for appellant.

      Eric Gonzalez, Acting District Attorney, Brooklyn (Jodi L. Mandel, Leonard Joblove and Joyce Adolfsen of counsel), for respondent.
   OPINION OF THE COURT

Wilson, J.

Defendant Jamar Bethune challenges Supreme Court’s granting of the People’s motion to resettle his trial transcript without holding the reconstruction hearing that Mr. Bethune requested. Although better practices could have been observed, Supreme Court did not, on the facts of this case, abuse its discretion by correcting the record without the benefit of a reconstruction hearing. Accordingly, the Appellate Division order upholding the judgment of Supreme Court should be affirmed.

I.

The trial judge is the “final arbiter of the record” certified to the appellate courts (People v Alomar, 93 NY2d 239, 247 [1999]; see Judiciary Law § 7-a). Parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer (People v Buccufurri, 154 App Div 827, 828 [1913]). Judges confronted with allegations of error in that record — especially allegations of their own error — may hold a reconstruction hearing with the parties, any witnesses or evidence the court deems helpful (cf. CPLR 5525 [c] [1]). Here, the court instead relied on the stenographer’s official certification of accuracy of the amended transcript, the affidavit of counsel recounting a conversation with that reporter as to the reason for the discrepancy in the two transcripts, and the context of the purported error. On this particular factual record Supreme Court did not act outside its discretion to resettle the transcript without a hearing.

As we have said, “[n]ot every dispute about the record mandates a reconstruction hearing” (People v Santorelli, 95 NY2d 412, 424 [2000]). In certain circumstances, Supreme Court can deny a party’s request for such a hearing when it concludes the exercise is not necessary to elucidate what originally took place. Under the facts in Santorelli, those circumstances were the “papers and record submitted, together with the court’s clear recollection” of the proceedings (id.). Although the facts of that case led us to emphasize the confident recollection of its trial judge, nothing in Santorelli required a reconstruction hearing absent that arbiter’s perfect recall. Even when a judge’s recollection of the disputed or missing portion of a transcript is unclear, other information may suffice to allow him or her to resettle the record without a reconstruction hearing.

II.

Here, although Supreme Court did not indicate that it had a clear recollection of the trial, it had sufficient information before it to resettle the transcript without the benefit of a hearing.

Mr. Bethune, an 18-year old who shot a 13-year old in front of the child’s family and others, was convicted after a jury trial of murder in the second degree and criminal possession of a weapon in the second degree. He contends on appeal that Supreme Court denied him a fair trial by providing a supplemental jury instruction that, according to the trial transcript as originally certified by the court reporter, described intentional murder as an unintentional crime and thereby relieved the People of the burden of establishing a crucial element of the charge.

On learning of Mr. Bethune’s contention, the People, believing the apparent defect in the instruction to be the result of a typographical error, drew the court reporter’s attention to the contested words in that instruction and asked the reporter to consult her notes. Although the court reporter provided neither an affidavit nor her notes to the court or counsel, the Assistant District Attorney submitted an affirmation that the reporter advised the People that her notes showed that the two relevant instances of the word “unintentional,” as well as the three others to which her attention had been drawn, should instead have been transcribed as “intentional.” The reporter prepared a corrected certified transcript in which those five instances reflected her stenographic notes. Presented with that affirmation and certified corrected transcript, Supreme Court ruled, over Mr. Bethune’s objection, that the record would be resettled in accordance with the corrected transcript without a reconstruction hearing.

Several factors support the Appellate Division’s conclusion that Supreme Court acted within its discretion to resettle the transcript on the basis of the information before it. The trial judge could rely not only on the reporter’s certification of the corrected transcript, but also on undisputed portions of that transcript, including: the accurate balance of the charge; the fact that two of the five alleged misstatements were attributed to defense counsel, not the court; and, most significantly, the repeated failure of any party to object to what would have been prominent misstatements of the law. Furthermore, as there was no suggestion during oral argument on the motion that any person present at the trial five years earlier could recollect what words were spoken, it is not clear what evidence beyond the reporter’s original stenographic notes might have been obtained through a hearing.

Although it would have been preferable for the court to have received an affidavit from the court reporter, rather than an affidavit of counsel recounting a conversation with that reporter, we cannot say that Supreme Court acted outside its discretion to resettle the transcript without a hearing.

Mr. Bethune’s remaining argument has been rendered academic by our decision.

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

Fahey, J.

(concurring). I join the majority opinion in full, but write separately to express my view concerning the “better practices [that] could have been observed” in this case (majority op at 541).

Appeals in which the accuracy of a transcript is challenged and the parties “cannot agree on . . . amendments to the transcript” (CPLR 5525 [c] [1]) pose unusual difficulties. Atrial judge confronted with allegations of error in a record certified to the appellate court has the “duty ... to pass upon the accuracy of the record” (People v Buccufurri, 154 App Div 827, 828 [2d Dept 1913]; see generally People v Alomar, 93 NY2d 239, 245, 247 [1999]). As a general matter, a judge is best able to fulfill that responsibility by holding a reconstruction hearing that affords the judge and the litigants the benefit of all relevant evidence and a full adversarial process. Short of each party’s stipulation to revisions of the transcript, a reconstruction hearing will in many cases constitute the best means of resolving apparent errors in a record (see e.g. Alomar, 93 NY2d at 243-244; People v Russell, 55 AD3d 940, 940-941 [3d Dept 2008], lv denied 11 NY3d 900 [2008]; People v Marzug, 280 AD2d 974, 974 [4th Dept 2001], lv denied 96 NY2d 904 [2001]; People v Wiggins, 227 AD2d 918, 918-919 [4th Dept 1996], lv denied 88 NY2d 1072 [1996], denied upon reconsideration 89 NY2d 1016 [1997]; cf. People v Mitchell, 136 AD3d 401, 401-402 [1st Dept 2016], lv denied 27 NY3d 1003 [2016], denied reconsideration 27 NY3d 1136 [2016]).

A reconstruction hearing is especially advisable when, as here, the allegations are of the trial judge’s own error, because such a hearing enables the judge to avoid the appearance of impropriety. It is important to preserve not only the actual accuracy of court transcripts, but also the appearance of a fair and rigorous process for the reconstruction of portions of transcripts affected by human failures (see generally 22 NYCRR 100.2 [“A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities”]).

A second recommended practice, to be followed by the litigants, relates to the situation in which a party to a criminal appeal believes (as in this case) that the party’s adversary is relying on an inaccurate transcription of the trial. In this situation, it would be preferable for the party to notify the trial judge, rather than the reporter, of the disputed portions of the transcript. This manner of notice allows the trial judge to ask the court reporter to review his or her stenographic notes, provide copies for inspection to both parties, and, if useful in the judge’s discretion, provide testimony as to the proper interpretation of the notes.

In this appeal, the trial court “relied on the stenographer’s official certification of accuracy of the amended transcript, the affidavit of counsel recounting a conversation with that reporter as to the reason for the discrepancy in the two transcripts, and the context of the purported error” (majority op at 541-542). While I cannot say that the trial court acted outside its discretion in the circumstances of this case, the process was far from optimal. The trial court should at the very least have required an affidavit from the court reporter, explaining the discrepancies between the transcripts, rather than merely an affirmation from the assistant district attorney summarizing what the court reporter told her. The better practice would have been to conduct a hearing in which defense counsel could cross-examine the reporter about the errors. In that way, counsel can explore, and create a record on, the issue whether a transcript dispute turns on a stenographer’s error or an actual mistake by the court that implicates defendant’s right to a fair trial.

Garcia, J.

(concurring). I agree fully with the majority opinion. I write separately to express an opposing view with respect to the “recommended practice[s]” discussed in Judge Fahey’s concurring opinion (concurring op at 544). Rather than a “full adversarial” hearing (concurring op at 544), I believe the appropriate practice is best determined by the trial court on the facts and circumstances of a given case, with due regard for judicial resources. As the majority notes, “[n]ot every dispute about the record mandates a reconstruction hearing” (majority op at 542, citing People v Santorelli, 95 NY2d 412, 424 [2000]; see also People v Glass, 43 NY2d 283, 286 [1977]). Similarly, I would not recommend involving a trial judge in some form of dialogue with a court reporter unless a dispute as to any proposed change to the transcript arises.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey and Garcia concur, Judge Fahey in a concurring opinion and Judge Garcia in a separate concurring opinion in which Chief Judge DiFiore concurs.

Order affirmed.

      . Cf. Santorelli, 95 NY2d at 423-424 (describing details of the court’s “very definite recollection” of the missing sidebar conference [emphasis omitted]).

      . Three of the transcription errors misrepresented the words of the trial judge: first during a colloquy with the attorneys, and twice during the supplemental jury instruction. The subsequent two errors misrepresented words defense counsel spoke outside the presence of the jury.

      . After the alleged misstatement, Supreme Court instructed the jury that “a person is guilty of Murder in the Second Degree when with the intent to cause the death of another person he causes the death of such person. The term intent used in this definition . . . means conscious objective or purpose.”