text:
    [981 NE2d 236, 957 NYS2d 640]
    James Knapp et al., Respondents, v James R. Hughes et al., Appellants.
    Argued September 12, 2012;
    decided October 18, 2012

      POINTS OF COUNSEL

      Sullivan Papain Block McGrath & Cannavo P.C., New York City (Brian J. Shoot of counsel), and Coughlin & Gerhart, L.L.P., Binghamton (Robert R. Jones of counsel), for appellants.
    The Appellate Division’s “waters edge” ruling was wrong both in terms of the governing precedent and in terms of the cogent policies underlying that precedent. (Gouvemeur v National Ice Co., 134 NY 355; Seneca Nation v Knight, 23 NY 498; Stewart v Turney, 237 NY 117; White v Knickerbocker Ice Co., 254 NY 152; Hammel v Camp Ranger, Inc., 275 App Div 23, 300 NY 602; Waters of White Lake, Inc. v Fricke, 282 App Div 333, 308 NY 899; Land & Lake Assn. v Conklin, 182 App Div 546; Confer v Pirman, 247 App Div 825; Town of Guilderland v Swanson, 29 AD2d 717.)

      Law Office of Patrick J. Kilker, Binghamton (Patrick J. Kilker of counsel), for respondents.
    I. The Appellate Division was right when it determined that language in a deed which runs title to the “edge” of a small inland non-navigable pond is an express reservation of the lands under the waters of the pond. (Gouverneur v National Ice Co., 134 NY 355; Halsey v McCormick, 13 NY 296; White v Knickerbocker Ice Co., 254 NY 152; Waters of White Lake, Inc. v Fricke, 282 App Div 333, 308 NY 899; Hammel v Camp Ranger, Inc., 275 App Div 23; Confer v Pirman, 247 App Div 825; Calkins v Hart, 219 NY 145; Hardin v Jordan, 140 US 371.) II. The court below failed to acknowledge the validity of a corrective deed. (Hart v Blabey, 287 NY 257; Heath v Hewitt, 127 NY 166; Lipton v Bruce, 1 NY2d 631.)
   OPINION OF THE COURT

Smith, J.

It has long been established New York law that a conveyance of land on a pond or stream includes the land under the pond or stream, to the center of the water, unless a contrary intention is made clear. We reaffirm that principle in this case, and hold that its application does not depend on minor variations in the language of the conveyance.

I

Defendants own land on the shore of Perch Pond. Both plaintiffs and defendants claim to be the owners of the land under the pond that is adjacent to defendants’ waterfront land. Both thus claim to have the exclusive right to use that part of the pond for swimming, fishing and other purposes.

The parties’ claims depend on the interpretation of two 1973 deeds from Anthony and Marilyn Furlano to defendants’ predecessors in title. According to defendants, these deeds conveyed both waterfront land and land under the water; plaintiffs say that only the waterfront land was conveyed.

It is undisputed that the Furlanos owned both waterfront and submerged land. Anthony Furlano had received in 1968 a deed conveying land “along the edge of Perch Pond.” That deed added the words: “The Grantor further conveys any rights which he may have in and to the lands under the waters of Perch Pond which bound and abut unto the lands hereinabove conveyed.” But when the Furlanos sold most of their land in 1973 to defendants’ predecessors in title, the conveyances they gave echoed the first of the quoted phrases from the 1968 deed, but not the second: the 1973 deeds conveyed land “along the waters [sic] edge of Perch Pond” and “along the edge of Perch Pond.” Plaintiffs, claiming under a 1993 deed by which the Furlanos conveyed their remaining waterfront property and “all remaining lands of Grantors,” assert that the 1973 deeds conveyed only the land next to the water, not the land under it, and that all the submerged land once owned by the Furlanos passed by the 1993 deed to plaintiffs’ predecessors in title.

Plaintiffs brought this action to enjoin defendants from interfering with or using the underwater property “and the water thereon.” Supreme Court granted summary judgment for defendants, but the Appellate Division modified and ruled in plaintiffs’ favor on the issue now before us, holding that the 1973 deeds “set the boundaries at the edge of the pond, a phrase which touches the land and not the water” (Knapp v Hughes, 25 AD3d 886, 890 [3d Dept 2006]). After further proceedings, Supreme Court entered a judgment from which we granted defendants leave to appeal (18 NY3d 827 [2011]), bringing up for review the Appellate Division’s earlier order on summary judgment. We now reverse.

II

It seems highly likely that most purchasers of waterfront property assume that they are acquiring not only the dry land, but the right to use the water also. Who would buy land on a pond or stream, if informed that he or she could only look at the water, not boat on it or fish or swim in it? This commonsense point was recognized by our court in Gouverneur v National Ice Co. (134 NY 355, 364 [1892]): “The value, such as they have, of small non-navigable lakes and ponds as a general rule is mainly in their relation to the adjacent lands.”

Even before the Gouverneur decision, our case law supported the rule that a purchase of waterfront property is presumed to include the adjacent underwater land. In Seneca Nation v Knight (23 NY 498 [1861]), we interpreted a conveyance of land “along the meanders” of Cattaraugus creek, and held that the land conveyed ran to the center of the river. We said that parties “may ... if they will” restrict their grants to shore land, “but the restriction ought to be found in very plain and express words” {id. at 500).

In Gouverneur, we expressed a similar thought:

“The boundaries are described as along the pond; and unless in some manner qualified or restricted they by legal construction had the effect to embrace its bed within their grants. This in such case is the presumed intent unless the contrary appears” (134 NY at 365).

In Stewart v Turney (237 NY 117, 121-122 [1923]), we said:

“If the grantor desires to retain his title to the land . . . underneath the water the presumption must be negatived by express words or by such a description as clearly excludes it from the land conveyed.”

In White v Knickerbocker Ice Co. (254 NY 152, 156 [1930]) we reiterated the words of Seneca and Gouverneur-.

“The value, such as they have, of small non-navigable lakes and ponds, as a general rule, is mainly in their relation to adjacent lands. If the parties mean to exclude the land under water, they should do so by express exception; the restriction ought to be framed in very plain and express words.”

And in Hammel v Camp Ranger, Inc. (275 App Div 23, 25 [3d Dept 1949], affd 300 NY 602 [1949]), the Appellate Division said:

“The rule that the terms of a grant are to be liberally construed in favor of the grantee has special emphasis as to a grant of land bordering upon a small inland body of water. It is uniformly held that in such instance there is a very strong presumption that the grantor intended to convey his ownership under water, at least to the center, and that nothing short of an express reservation will overcome its force” (internal quotation marks and citation omitted).

From the statements we have quoted, it might seem obvious that the 1973 Furlano deeds, which contain no “plain and express” reservation of rights to land under the water, must be read as conveying that underwater land to defendants’ predecessors. The issue is more complicated, however, because several cases contain dictum to the effect that a small change in the words of a deed could create a reservation of underwater rights. Thus in Gouverneur, in which we interpreted deeds conveying land “along Hinckley pond” and “along said pond” to include land to the pond’s center, we said that “a boundary line described as ‘along the shore’ of a fresh-water stream does not extend the grant to its center” (134 NY at 365). And in White, where we held that a conveyance “along the south side of the Rockland Lake” conveyed land to the center, we said that a conveyance of land “by the shore” or “to the bank” (254 NY at 156) or “to the edge or margin of the lake” (id. at 158) would convey only shore land. On the other hand, in Hammel, we affirmed the Appellate Division’s holding that a conveyance of land “along said Pleasant Pond shore” and “to run along the said Pleasant Pond and to run to the low water mark thereof’ included land to the center of the pond; the Appellate Division said that these words would not suffice to reserve rights to underwater land, even if they were “synonymous with ‘margin’, ‘edge’ or ‘side’ of the pond” (275 App Div at 26).

These dictums are not consistent, but those in Gouverneur and White, especially the reference in White to the words “edge ... of the lake” as insufficient to convey land under water, might seem to support plaintiffs’ position, and the holding of the Appellate Division here; the 1973 Furlano deeds conveyed land “along the edge of Perch Pond,” and the White dictum implies that such a grant is limited to the land adjoining the water. We conclude, however, that this and similar dictums were mistaken and should not be followed. The effect of a grant should not turn on such fine distinctions as that between “side” and “edge.” To make a plain and express reservation of rights to underwater land, a grantor must do more than use the word “edge” or “shore” in a deed. He or she must say that land under water is not conveyed, in those words or in words equally clear in meaning. In the absence of an explicit reservation, a grant of land on the shore of a pond or stream will be held to include the adjoining underwater land, except in unusual cases where the nature of the grant itself shows a contrary intention.

Such an unusual case was Matter of Brookfield (Sarles) (176 NY 138 [1903]), the only case we have found in which this Court held that a conveyance of property adjacent to a body of water reserved to the grantor rights in underwater land. The grantee in Brookfield was the owner of a mill on a river near a pond, who wanted to build a dam that would flood the pond’s shore. The grantor was the owner of part or all of the pond, and the land around it. The grant included only land “that will be overflowed ... in consequence of the erection” of the dam, and the land was conveyed “only for the purpose of being flowed by said pond” (176 NY at 138-139). Thus in Brookfield the terms of the grant strongly supported an inference that the grantor meant to transfer only shore, not underwater, land.

It is true that there is language in Brookfield similar to the Gouverneur and White dictums that we reject today. We said in Brookfield-.

“when the boundary line is along the side, the edge, the border or the margin of a highway, stream or pond, the parties will be held to have intended to limit the lands conveyed to that within such boundary, and not to that which constitutes the body of such highway, stream or pond” {id. at 145).

But this language too was dictum. The result in Brookfield did not turn on the words chosen to describe the boundary: indeed, those words, “all the land on both sides of . . . Byram pond,” are indistinguishable from the words that we later interpreted in White as including underwater land. The Brookfield result followed from the limited nature of the grant in that case.

In this case, nothing in the Furlanos’ 1973 conveyance of title to defendants’ predecessors shows an intention to withhold underwater lands from the grant. Since the deeds do not expressly exclude underwater lands, they must be read as conveying such land, to the center of the pond, to defendants’ predecessors.

Accordingly, the judgment appealed from and the order of the Appellate Division, insofar as brought up for review, should be reversed, with costs, and judgment granted to defendants declaring their rights to underwater land in accordance with this opinion.

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

Judgment appealed from and order of the Appellate Division, insofar as brought up for review, reversed, etc.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [978 NE2d 1246, 954 NYS2d 777]
    The People of the State of New York, Respondent, v Calvin L. Harris, Appellant.
    Argued September 11, 2012;
    decided October 18, 2012

      POINTS OF COUNSEL

      Easton Thompson Kasperek Shiffrin LLP, Rochester (William T. Easton and Brian Shiffrin of counsel), for appellant.
    I. The prosecution failed to prove that Calvin Harris was guilty of the murder of Michele Harris. (People v Cintron, 95 NY2d 329; People v Rossey, 89 NY2d 970; People v Kennedy, 47 NY2d 196; People v Way, 59 NY2d 361; People v Barnes, 50 NY2d 375; People v Cleague, 22 NY2d 363; People v Ford, 66 NY2d 428; People v Benzinger, 36 NY2d 29; People v Lipsky, 57 NY2d 560; Ruloff v People, 18 NY 179.) II. The trial court below committed reversible error when it denied Calvin Harris’s challenge for cause to a prospective juror who had a preexisting opinion as to guilt and did not give an unequivocal assurance that this opinion would not affect her consideration of the case. (People v Arnold, 96 NY2d 358; People v Culhane, 33 NY2d 90; People v Nicholas, 98 NY2d 749; Irvin v Dowd, 366 US 717; People v Johnson, 94 NY2d 600; People v Johnson, 17 NY3d 752; People v Chambers, 97 NY2d 417; People v Torpey, 63 NY2d 361; People v Bludson, 97 NY2d 644; People v Cahill, 2 NY3d 14.) III. Calvin Harris was denied his right to a fair trial before an impartial jury because inflammatory and prejudicial pretrial publicity saturated the community from which the jury was drawn. (People v Mahboubian, 74 NY2d 174; People v Lopez, 68 NY2d 683; Irvin v Dowd, 366 US 717; Sheppard v Maxwell, 384 US 333; Mu’Min v Virginia, 500 US 415; Patton v Yount, 467 US 1025; Estes v Texas, 381 US 532; United States v Dellinger, 472 F2d 340; People v Boss, 261 AD2d 1; People v Boudin, 90 AD2d 253.) IV The rulings of the court below precluding the admission of the exculpatory and reliable statements and affidavit of John Steele violated New York’s evidentiary rules and Calvin Harris’s rights to present a defense and to a fair trial as guaranteed by both the United States and New York Constitutions. (Crawford v Washington, 541 US 36; Chambers v Mississippi, 410 US 284; People v Robinson, 89 NY2d 648; People v Oxley, 64 AD3d 1078; Berger v United States, 295 US 78; People v Brown, 26 NY2d 88; Green v Georgia, 442 US 95; Holmes v South Carolina, 547 US 319; People v Darrisaw, 206 AD2d 661; Rosario v Kuhlman, 839 F2d 918.) V The lower court improperly admitted hearsay statements from Michele Harris to her sisters-in-law in violation of Calvin Harris’s rights under New York evidentiary law and the New York and United States Constitutions, then improperly refused to give a limiting instruction that such statements could not be considered for their truth. (People v Ewell, 12 AD3d 616, 4 NY3d 763; People v Davis, 23 AD3d 833; People v Davis, 87 AD3d 1332; People v Reynoso, 309 AD2d 769, 2 NY3d 820; People v Bierenbaum, 301 AD2d 119; People v Stanard, 32 NY2d 143; People v Perez, 9 AD3d 376; People v Crimmins, 36 NY2d 230.) VI. The prosecutor engaged in multiple acts of misconduct which deprived Calvin Harris of his right to a fair trial as guaranteed by both the United States and New York Constitutions. (People v Zimmer, 51 NY2d 390; People v Grice, 100 AD2d 419; People v Adams, 21 NY2d 397; People v Fielding, 158 NY 542; Berger v United States, 295 US 78; People v Diotte, 63 AD3d 1281; People v Skinner, 298 AD2d 625; People v Walters, 251 AD2d 433; People v Ortiz, 125 AD2d 502; People v Allen, 74 AD2d 640.)

      Gerald A. Keene, District Attorney, Owego, for respondent.
    I. The evidence was legally sufficient to convict defendant of murder in the second degree. (People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Acosta, 80 NY2d 665; People v Danielson, 9 NY3d 342; People v Cintron, 95 NY2d 329; People v

      Tejeda, 73 NY2d 958; People v Grassi, 92 NY2d 695; People v Rossey, 89 NY2d 970; People v Williams, 84 NY2d 925; People v Thibeault, 73 AD3d 1237, 15 NY3d 810.) II. The trial court did not err by denying defendant’s challenge for cause. (People v Arnold, 96 NY2d 358; People v Stroman, 6 AD3d 818, 3 NY3d 648; People v Hernandez, 222 AD2d 696, 88 NY2d 879; People v Shulman, 6 NY3d 1; People v Chambers, 97 NY2d 417; People v Johnson, 94 NY2d 600; People v Williams, 63 NY2d 882; People v Torpey, 63 NY2d 361; People v Johnson, 17 NY3d 752.) III. The Appellate Division did not err in denying the three requests for a change of venue. (People v Cahill, 2 NY3d 14; People v Boudin, 90 AD2d 253; Rideau v Louisiana, 373 US 723; People v Martin, 19 AD2d 804; People v Brensic, 136 AD2d 169; People v Acomb, 94 AD2d 978; People v Boss, 261 AD2d 1; People v Bosket, 216 AD2d 791; United States v Yousef, 327 F3d 56; People v Berry, 235 AD2d 571.) IV The trial court did not err by refusing to permit defendant to offer inadmissible, unreliable hearsay. (Chambers v Mississippi, 410 US 284; People v Robinson, 89 NY2d 648; People v Oxley, 64 AD3d 1078; Holmes v South Carolina, 547 US 319; Gottwald v Medinger, 257 App Div 107; People v Darrisaw, 206 AD2d 661.) V The lower court did not err by allowing the jury to hear admissions made by defendant; the jury instruction concerning these admissions was proper. (People v McEaddy, 41 AJDSd 877; Crawford v Washington, 541 US 36; People v Ewell, 12 AD3d 616, 4 NY3d 763; People v Perez, 9 AD3d 376, 3 NY3d 710; People v Glover, 195 AD2d 999, 82 NY2d 849; People v Reynoso, 2 NY3d 820; People v Cardew, 132 AD2d 721, 70 NY2d 953; People v Bierenbaum, 301 AD2d 119; People v Davis, 23 AD3d 833, 6 NY3d 811.) VI. There was no prosecutorial misconduct in this case. (People v Cherry, 46 AD3d 1234, 10 NY3d 839; People v Beyer, 21 AD3d 592, 6 NY3d 752; People v Townsley, 240 AD2d 955, 90 NY2d 943; People v Stasiak, 25 AD3d 1025; People v Greene, 13 AD3d 991, 5 NY3d 789; People v Tarantola, 178 AD2d 768, 79 NY2d 954; People v Grady, 40 AD3d 1368, 9 NY3d 923; People v Skinner, 298 AD2d 625; People v Hemmins, 290 AD2d 219, 97 NY2d 755; People v Henderson, 13 NY3d 844.)
   OPINION OF THE COURT

Pigott, J.

Michele Harris, mother of four young children and defendant’s estranged wife, was last seen on the evening of September 11, 2001. At approximately 7:00 a.m. the following day, the Harris family babysitter, Barbara Thayer, discovered Michele’s unoccupied minivan at the bottom of the quarter-mile driveway of the Harris residence, which is situated on a 200-acre estate in a remote area of Tioga County. Although the Harrises were in the process of divorcing, they continued living in the same residence, albeit sleeping in separate rooms.

After driving Ms. Thayer to the end of the driveway to retrieve Michele’s vehicle, defendant, the owner of several car dealerships, left for work. When a friend of Michele’s called the Harris household and was told by Ms. Thayer that Michele had not returned home the night before, the friend called Michele’s divorce attorney who, in turn, contacted state police. Later that morning, police questioned defendant at his dealership concerning Michele’s disappearance. Defendant accompanied police to his home and consented to a search of his residence and Michele’s minivan, eventually leaving the officers at the residence and returning to work. Later that day, defendant gave police written consent to search his residence and vehicles.

On September 14, 2001, evidence technicians discovered blood on the tiled floor of a kitchen alcove, on door moldings and surfaces leading to the garage and on the wall of the garage leading into the house. At that point, police obtained a search warrant and, upon returning the following day, discovered blood on the garage floor as well.

The weekend following Michele’s disappearance, defendant and his children visited defendant’s brother in Cooperstown. During dinner, defendant’s sisters-in-law Francine and Mary Jo Harris confronted defendant about statements he had allegedly made to Michele. According to Francine and Mary Jo, Michele told them in March 2001 that defendant threatened her by stating that he would not need a gun to kill her, that police would never find her body and that he would never be arrested. The police investigation, spanning several years, produced neither a body nor a weapon.

I

In 2005, defendant was indicted on one count of murder in the second degree. A jury convicted him of that offense in the spring of 2007. The day after the verdict, a local farmhand came forward with information that he had seen Michele and a man in his mid-20s at the end of the Harris driveway at approximately 5:30 a.m. on September 12, 2001. Armed with this new information, defense counsel moved, pursuant to CPL 330.30, to set aside the verdict. The trial court granted the motion, and its order was affirmed on appeal (55 AD3d 958 [3d Dept 2008]).

II

Given the high-profile nature of the case, there was significant media coverage in local newspapers and on television, including two national broadcasts, covering Michele’s disappearance and defendant’s first trial. Defense counsel made two change of venue motions prior to the retrial, citing “prejudicial publicity.” Each motion was denied, as was a third motion made by defense counsel during jury selection.

After a lengthy retrial that included extensive blood spatter and DNA evidence and testimony concerning threatening statements defendant purportedly made to Michele, a jury once again convicted defendant of murder in the second degree. The Appellate Division, in a 3-1 decision, affirmed the judgment, holding, among other things, that the verdict was supported by legally sufficient evidence, that the trial court properly denied a for-cause challenge of a prospective juror made by defendant, and that the trial court properly allowed in evidence Michele’s hearsay statements to Francine and Mary Jo for the limited purpose of allowing the jury to evaluate defendant’s reaction to those accusations (88 AD3d 83 [3d Dept 2011]). The dissenting Justice, in addition to arguing that the verdict was not supported by legally sufficient evidence, asserted that the trial court committed reversible error in denying defendant’s for-cause challenge of the prospective juror and in giving an inadequate limiting instruction concerning Michele’s hearsay statements to Francine and Mary Jo. A Justice of the Appellate Division granted defendant leave to appeal (2011 NY Slip Op 83081[U] [2011]). We now reverse the order of the Appellate Division and remit for a new trial.

III

The Appellate Division properly held that the guilty verdict was supported by legally sufficient evidence. However, a critical error occurred during voir dire when County Court failed to elicit from a prospective juror an unequivocal assurance of her ability to be impartial after she apprised defense counsel that she had a preexisting opinion as to defendant’s guilt or innocence.

At voir dire, the prospective juror acknowledged that she had followed the case in the media and that she had “an opinion slightly more in one direction than the other” concerning defendant’s guilt or innocence. When asked by defense counsel if her opinion would impact her ability to judge the case based solely on the evidence presented at trial, the prospective juror responded, “[H]ow I feel, opinion-wise, won’t be all of what I consider if I’m in the jury,” but admitted that it would be “[a] slight part” of what she would consider (emphasis supplied).

Defense counsel challenged the prospective juror for cause on the ground that she could not say that her preexisting opinion would have no effect on her ability to sit as a fair juror. The trial court denied the challenge and defendant utilized a peremptory challenge on the prospective juror. Defendant exhausted his peremptory challenges, and, therefore, preserved this issue for review (see CPL 270.20 [2]).

CPL 270.20 (1) (b) provides that a party may challenge a potential juror for cause if the juror “has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial.” We have consistently held that “a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” (People v Chambers, 97 NY2d 417, 419 [2002]; see People v Arnold, 96 NY2d 358, 363 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]). “[W]hen potential jurors themselves say they question or doubt they can be fair in the case, Trial Judges should either elicit some unequivocal assurance of their ability to be impartial when that is appropriate, or excuse the juror when that is appropriate,” since, in most cases, “[t]he worst the court will have done ... is to have replaced one impartial juror with another impartial juror” (People v Johnson, 17 NY3d 752, 753 [2011], citing People v Johnson, 94 NY2d 600, 616 [2000]).

The prospective juror had a preexisting opinion concerning defendant’s guilt or innocence that cast serious doubt on her ability to render an impartial verdict. At that point, it was incumbent upon the trial court to conduct its own follow-up inquiry of the prospective juror once she stated that her preexisting opinion would play only “[a] slight part” in her consideration of the evidence. Given the absence of that inquiring, the trial court committed reversible error in denying defendant’s for-cause challenge (see Johnson, 17 NY3d at 753).

Finally, while the trial court properly allowed in evidence Michele’s hearsay statements to Francine and Mary Jo for the limited purpose of providing context as to defendant’s reaction upon being confronted with them, it erred in failing to grant defendant’s request for a limiting instruction to the jury not to consider the statements for their truth. The trial court acknowledged that Michele’s statements constituted hearsay, but denied defendant’s request for a limiting instruction because it did not “want to unnecessarily confuse the jury.” It opted instead to charge the jury that the statements constituted hearsay which would not normally be allowed in evidence because its truthfulness could not be tested under oath, and then stated: “You, the jury, may consider that testimony regarding this episode and determine what evidentiary value, if any, you choose to assign to the exchange that occurred between Mary Jo and Francine and Mr. Harris.”

The trial court’s failure to issue the appropriate limiting instruction was not harmless. In a case where there was no body or weapon, and the evidence against defendant was purely circumstantial, the danger that the jury accepted Michele’s statements for truth was real. Although the court’s instruction explained why the statements were admitted in evidence, it failed to apprise the jury that the statements were not to be considered for their truth. This error was compounded when the prosecutor in his summation relied on those statements as direct evidence that defendant had, in fact, murdered Michele and successfully hid her body, as he purportedly threatened Michele that he would do.

We are not unsympathetic to defendant’s claim that prejudicial and inflammatory pretrial publicity saturated the community from which the jury was drawn and effectively deprived defendant of a fair trial by an impartial jury. A significantly high percentage of prospective jurors admitted to having heard about the case and nearly half had formed a preexisting opinion as to defendant’s guilt or innocence. Notably, “as with so many other cases, the problem encountered with jury selection is inextricably linked to the problem of venue,” and although media saturation by its very nature is prejudicial, “it is unrealistic to expect and require jurors to be totally ignorant prior to trial of the facts and issues in certain cases” (People v Culhane, 33 NY2d 90, 110 [1973] [citations omitted]).

Although our decision to reverse the conviction and order a new trial is premised upon the trial court’s denial of the for-cause challenge and failure to issue the appropriate limiting instruction, we are cognizant that publicity attending a third trial may render voir dire significantly burdensome. In such a case, to counter the potential “temptation to relax the rules and accept a doubtful juror so that the case may proceed to trial,” we expect the trial court to exercise “special vigilance to insure that the adverse publicity does not infect the adjudicating process” and, in such exercise, strongly consider changing venue if for-cause disqualifications “become legion,” rendering voir dire “hopelessly burdensome” (Culhane, 33 NY2d at 110 n 4).

We have considered defendant’s remaining contentions and conclude that they are without merit.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Lippman and Judges Ciparick, Grapfeo, Smith and Jones concur; Judge Read dissents and votes to reverse and dismiss the indictment for the reasons stated in so much of the dissenting opinion of Justice Bernard J. Malone at the Appellate Division as addressed sufficiency of the evidence (88 AD3d 83, at 98-120).

Order reversed, etc.

      . Months later, police also examined a kitchen throw rug and discovered what appeared to be blood stains.

      . At the second trial, defendant denied making these statements. Francine and Mary Jo, however, testified that defendant initially denied making the statements, but then said that he may have said something like that but that did not mean that he was going to kill Michele.


author: Per Curiam.

text:
    [978 NE2d 1254, 954 NYS2d 784]
    In the Matter of Peter J. Galasso (Admitted as Peter John Galasso), an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Argued September 11, 2012;
    decided October 23, 2012

      POINTS OF COUNSEL

      Galasso, Langione, Catterson & LoFrumento, LLP, Garden City (Jeffrey L. Catterson of counsel), and Moran Karamouzis LLP, Rockville Centre (Grace D. Moran of counsel), for appellant.
    I. The Appellate Division’s order should be reversed because it impermissibly imposes strict or vicarious liability on an attorney for funds criminally stolen by an employee despite the attorney’s appropriate supervision and oversight of the account. (Adams v New York City Tr. Auth., 88 NY2d 116; Carnegie v J.P. Phillips, Inc., 28 AD3d 599; Oliva v City of New York, 297 AD2d 789; Woods v MONY Legacy Life Ins. Co., 84 NY2d 280; Baquerizo v Monasterio, 90 AD3d 587.) II. The Appellate Division’s order should be reversed because attorneys should not be deemed insurers of their escrow accounts. III. The disciplinary rules and procedures deprive attorneys of their constitutional rights to due process and equal protection. IV The Appellate Division’s order should be reversed because it erroneously sustained the charges against appellant and the Court abused its discretion as a matter of law in suspending appellant. (Matter of Holtzman, 78 NY2d 184; Grombach Prods., Inc. v Waring, 293 NY 609; Schank v Schuchman, 212 NY 352; American Sur. Co. v Conner, 251 NY 1; Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415; Matter of Fine, 263 AD2d 262; Matter of Casano, 280 AD2d 86; Matter of O’Reilly, 91 AD3d 191; Matter of Fonte, 75 AD3d 199; Matter of Duboff, 21 AD3d 206.)

      Gary L. Casella, White Plains (Matthew Lee-Renert, Faith Lorenzo and Antonia Cipollone of counsel), for respondent.
    I. Appellant was disciplined for his own professional misconduct. (Matter of Rowe, 80 NY2d 336; Matter of Loughlin, 124 AD2d 925; Matter of Rogers, 94 AD2d 121; Matter of Raines, 38 AD2d 459; Matter of Allen, 308 AD2d 143; Matter of Linn, 200 AD2d 4; Matter of Sykes, 150 AD2d 126; Matter of Pollack, 142 AD2d 386; Matter of Ponzini, 259 AD2d 142, 268 AD2d 478; Matter of Cardoso, 152 AD2d 157.) II. Appellant was guilty of professional misconduct irrespective of his ability to make restitution. (Matter of Feiden, 29 AD3d 115; Matter of Ryan, 264 AD2d 128; Matter of Ciacci, 275 AD2d 19; Matter of Fitzgerald, 279 AD2d 160.) III. Appellant was disciplined following a full and fair proceeding which was consistent with his constitutional rights to due process and equal protection. (Matter of Kelly, 23 NY2d 368; Gerzof v Gulotta, 87 Misc 2d 768; Matter of Echeles, 430 F2d 347; Mildner v Gulotta, 405 F Supp 182; Matter of Maddox, 157 AD2d 244.) IV Appellant’s violations of the disciplinary rules are established by the record and the discipline imposed is consistent with prior disciplinary cases. (Matter of Kelly, 23 NY2d 368; Matter of Mix, 274 NY 183; Matter of Hawes, 217 NY 602; Matter of Fonte, 75 AD3d 199; Matter of Laudonio, 75 AD3d 144; Matter of Holtzman, 78 NY2d 184; Matter of Cooperman, 83 NY2d 465; Matter of Davidson, 11 AD3d 11; Matter of Westfal, 263 AD2d 259; Matter of Walker, 113 AD2d 254, 67 NY2d 917.) V Appellant is seeking to lower the standards of attorney professionalism. (Meinhard v Salmon, 249 NY 458; Matter of Cooperman, 83 NY2d 465.)

      Glenn S. Koopersmith, Garden City, for Nassau County Bar Association, amicus curiae.
    This Court should reverse the order on appeal which seemingly imposes a strict liability standard upon every attorney maintaining an escrow account. (Matter of Holtzman, 78 NY2d 184; Matter of Forman, 250 AD2d 116.)

      Law Offices of Thomas F. Liotti, Garden City (Thomas F. Liotti of counsel), amicus curiae.
    I. Appellant has violated rule 1.3 (a), (b) and (c) of the Rules of Professional Conduct (22 NYCRR 1200.0). (Matter of Lowenthal, 132 AD2d 117; Matter of Galluscio, 42 AD3d 264.) II. Appellant has violated rule 1.15 of the Rules of Professional Conduct (22 NYCRR 1200.0). (Matter of Gambino, 205 AD2d 212; Matter of Fonte, 75 AD3d 199.) III. Appellant has violated rule 3.3 of the Rules of Professional Conduct (22 NYCRR 1200.0). IV Appellant has violated rule 3.4 of the Rules of Professional Conduct (22 NYCRR 1200.0). V Appellant has violated rule 4.1 of the Rules of Professional Conduct (22 NYCRR 1200.0). (Matter of Lowell, 14 AD3d 41, 4 NY3d 846, 5 NY3d 708.) VI. Appellant has violated rule 4.4 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0). VII. Appellant has violated all of rule 5.3 of the Rules of Professional Conduct (22 NYCRR 1200.0). (Matter of Jayson, 3 AD3d 80; Matter of Iaquinta-Snigur, 30 AD3d 67.) VIII. The discipline imposed is not comparative in that it is far too lenient given the appellant’s misconduct. (Matter of Sherman, 235 AD2d 60; Matter of Galluscio, 42 AD3d 264; Matter of Gould, 45 AD3d 223.)
   OPINION OF THE COURT

Per Curiam.

Petitioner instituted a disciplinary proceeding against respondent attorney Peter J. Galasso alleging 10 charges of professional misconduct. The essence of the petition is that respondent failed to properly supervise the firm’s bookkeeper resulting in the misappropriation of client funds and that he breached his fiduciary duty by failing to safeguard those funds. Although we find the bulk of the charges were properly sustained, we modify to dismiss the charge alleging respondent’s failure to timely comply with the lawful demands of the Grievance Committee.

At all times relevant to this appeal, respondent has been a partner of the law firm known as Galasso & Langione, LLP (the Galasso Langione firm). Anthony Galasso, respondent’s brother, was also employed by the firm and had, over the course of several years, worked his way up from an entry-level position as a file clerk and messenger to become the firm’s bookkeeper and office manager.

In June 2004, respondent represented Steven Baron in a matrimonial action commenced by Wendy Baron. The parties and their attorneys entered into an escrow agreement through which respondent was the designated escrow agent for the proceeds from a sale of commercial property owned by Steven Baron. Respondent agreed to hold the sum of $4,840,862.34 in an interest-bearing escrow account, pending further order of Supreme Court in the matrimonial action. Anthony Galasso, in his capacity as office manager, deposited the funds into an escrow account at Signature Bank (the Baron escrow account). Respondent and fellow partner James Langione were the only authorized signators on the account application. However, Anthony Galasso apparently altered the application to permit electronic fund transfers and to include himself—a nonlawyer—as a signator.

Between June 23, 2004 and January 17, 2007, Anthony Ga-lasso transferred approximately $4,501,571 from the Baron escrow account into six other firm accounts maintained at Signature Bank through the use of roughly 90 Internet transfers. It seems that the Baron funds were used to replace money that Anthony Galasso had already removed from the firm accounts. Transferred funds from the Baron escrow account were then disbursed to respondent, firm employees and other entities in the course of business, all without the knowledge of the firm’s principals or the consent of the Barons. In particular, approximately $360,000 in funds transferred from the Baron escrow account were used to finance the purchase of the firm’s office condominium. To escape detection, Anthony Galasso had the genuine Baron escrow account statements, generated by the bank, diverted to a post office box and fabricated false statements for review by the firm. Although the Barons demanded payment of the funds held in escrow, more than $4.3 million remains due and owing to them.

In June 2006, the Galasso Langione firm received $800,000 on behalf of the Estate of George Carroll in settlement of a medical malpractice/wrongful death action and Anthony Ga-lasso deposited the funds into the firm’s IOLA (Interest on Lawyer Account) at M&T Bank. The following month, the firm received $175,000 on behalf of Adele Fabrizio in connection with a personal injury action. Anthony Galasso also deposited these funds into the firm’s M&T IOLA. Anthony Galasso misappropriated the bulk of these funds by forging the partners’ signatures on IOLA checks. With respect to the IOLA, respondent’s practice had been to review monthly financial reports generated by Anthony Galasso, rather than the account statements themselves. To date, despite the clients’ demands for the return of their funds, the firm has returned only $85,791.36 to the Estate of Carroll; no funds have been returned to Fabrizio.

Anthony Galasso confessed to the theft of the above funds on January 18, 2007 and ultimately pleaded guilty to two counts of grand larceny in the first degree, 10 counts of falsifying business records in the first degree and 10 counts of criminal possession of a forged instrument in the second degree. He was sentenced to to lxh years’ imprisonment, as well as $2,000,000 in restitution. Respondent cooperated fully with the criminal investigation. Indeed, the Nassau County District Attorney’s Office submitted a letter to the Grievance Committee providing its conclusions that no one else in the firm had had knowledge of the theft and that nothing in the documents presented to the firm by Anthony Galasso would have raised any suspicion regarding the accounts. Respondent has also commenced civil suits against the banks involved, in an attempt to recover the client funds.

As noted above, the Grievance Committee commenced a disciplinary proceeding against respondent alleging 10 charges of professional misconduct. The matter was referred to a Special Referee who sustained all 10 charges. The Appellate Division granted the Committee’s motion to confirm the Referee’s report and denied respondent’s cross motion to disaffirm the report (94 AD3d 30 [2d Dept 2012]). The Court also suspended respondent from the practice of law for a period of two years. This Court granted respondent leave to appeal, and we now modify.

Few, if any, of an attorney’s professional obligations are as crystal clear as the duty to safeguard client funds. Rather than establishing a new or heightened degree of liability for attorneys, we find that the Appellate Division’s determination is completely consistent with existing standards pertaining to the safeguarding and oversight of client funds. In other words, “a reasonable attorney, familiar with the Code and its ethical strictures, would have notice of what conduct is proscribed” (Matter of Holtzman, 78 NY2d 184, 191 [1991]).

Respondent is not bound to his clients solely by the contractual language of the escrow agreement, but also by a fiduciary relationship. “A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior” (Meinhard v Salmon, 249 NY 458, 464 [1928]; see Matter of Wallens, 9 NY3d 117, 122 [2007]). Respondent owed his clients a high degree of vigilance to ensure that the funds they had entrusted to him in his fiduciary capacity were returned to them upon request. To that end, implementation of any of the basic measures respondent has since adopted—personal review of the bank statements, personal contact with the bank and improved oversight of the firm’s books and records—likely would have mitigated, if not avoided, the losses.

Here, although respondent himself did not steal the money and his conduct was not venal, his acts in setting in place the firm’s procedures, as well as his ensuing omissions, permitted his employee to do so. Moreover, the Baron funds were used for the benefit of respondent and the firm. That respondent has acted without venality can be a factor considered in mitigation, but is not probative of whether he has failed to preserve client funds (see e.g. Matter of Wilkins, 70 AD3d 1119, 1119-1120 [3d Dept 2010]; Matter of Abato, 51 AD3d 225, 228 [2d Dept 2008]).

Unquestionably, Anthony Galasso had devised a relatively sophisticated system and his fraud went undetected by the attorneys and accountant reviewing the documents he produced. However, respondent ceded an unacceptable level of control over the firm accounts to his brother, thereby creating the opportunity for the misuse of client funds. Had respondent been more careful in supervising the accounts and his employee, he would have been aware of the malfeasance at a much earlier time when he could have substantially mitigated the losses.

It cannot be said that there were no warning signs here. Specifically, a nearly $5,000 “discrepancy” in the escrow account was noted by Baron’s accountant, which respondent permitted Anthony Galasso to resolve with the bank. Anthony Galasso then corrected the “discrepancy” on a fabricated account statement by showing an Internet transfer of funds from the firm IOLA to the Baron escrow account. In addition, when asked to obtain a $100,000 check from the escrow account payable to Wendy Baron, Anthony Galasso produced a check from the IOLA, which respondent then signed and provided to Mrs. Baron. The fabricated statement for the escrow account later reflected an expenditure of $100,000 by check number 1738, despite the fact that no checks had been written on the escrow account.

A discrepancy in an escrow account should, at a minimum, be alarming to a reasonably prudent attorney. This is not to say that attorneys are prohibited from delegating certain tasks to firm employees, but any delegation must be made with an appropriate degree of oversight. We stress that it is the ethical responsibility of the attorney—not the bookkeeper, the office manager or the accountant—to safeguard client funds.

To be clear, respondent is not being held responsible for the criminal behavior of his brother. Rather, it is his own breach of his fiduciary duty and failure to properly supervise his employee, resulting in the loss of client funds entrusted to him, that warrant this disciplinary action. We find that charges 1 through 4 and 6 through 10 were properly sustained.

Respondent was also charged with the failure to timely comply with the Grievance Committee’s lawful demands for information (charge five) in violation of former DR 1-102 (a) (5) and (7) and Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4 (d) and (h). Petitioner maintains that, between May 12, 2008 and July 22, 2009, it made repeated requests for information to which respondent failed to fully and timely respond and that respondent’s conduct impeded and delayed its investigation.

We find the imposition of the separate charge on this basis to be unsupported by the record. It is difficult to characterize respondent’s overall participation in the disciplinary process as anything other than active. Both respondent and his counsel were in regular correspondence with the Grievance Committee and provided copious documentation in response to its requests. When particular demands could not be immediately met, respondent generally acknowledged same, explained why and stated his intention to provide the information at the earliest opportunity. Under these particular circumstances, we find that respondent’s level of compliance with this investigation is inconsistent with a sustained charge of failure to timely comply with the Committee’s lawful demands. Upon remittal, the Appellate Division should reconsider whether the suspension previously imposed remains an appropriate sanction.

Accordingly, the order of the Appellate Division should be modified, without costs, by dismissing charge five of the petition and remitting the matter to that Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in per curiam opinion.

Order modified, etc.

      . The firm was subsequently known as Galasso, Langione & Better, LLP and is currently known as Galasso, Langione, Catterson & LoFrumento, LLP

      . Charges one, two, seven and nine allege that respondent breached his fiduciary duty to pay or deliver escrow funds, by failing to safeguard client funds and by failing to promptly pay or deliver those funds to the person entitled to them (Code of Professional Responsibility DR 9-102 [a], [c] [4]; DR 1-102 [a] [7] [22 NYCRR 1200.46 (a), (c) (4); 1200.3 (a) (7)]; now Rules of Professional Conduct [22 NYCRR 1200.0] rules 1.15 [a], [c] [4]; 8.4 [h]).
      Charges 6, 8 and 10 allege that respondent failed to supervise a nonlawyer employee resulting in the misappropriation of client funds (Code of Professional Responsibility DR 1-104 [d] [2] [22 NYCRR 1200.5 (d) (2)]; now Rules of Professional Conduct [22 NYCRR 1200.0] rule 5.3 [b] [2] [i], [ii]).
      Charge three alleges that respondent was unjustly enriched by use of the Baron funds for his personal benefit (Code of Professional Responsibility DR 9-102 [a]; 1-102 [a] [5], [7] [22 NYCRR 1200.46 (a); 1200.3 (a) (5), (7)]; now Rules of Professional Conduct [22 NYCRR 1200.0] rules 1.15 [a]; 8.4 [d], [h]).
      Charge four alleges that respondent failed to provide appropriate accounts to the Barons with respect to their escrow funds (Code of Professional Responsibility DR 9-102 [c] [3]; 1-102 [a] [7] [22 NYCRR 1200.46 (c) (3); 1200.3 (a) (7)]; now Rules of Professional Conduct [22 NYCRR 1200.0] rules 1.15 [a]; 8.4 [h]).
      Charge five alleges that respondent failed to timely comply with the lawful demands of the Committee (Code of Professional Responsibility DR 1-102 [a] [5], [7] [22 NYCRR 1200.3 (a) (5), (7)]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 8.4 [d], [h]).

      . In particular, the Grievance Committee took issue with the responses to its requests seeking: (1) a forensic examination conducted by outside accountants to audit all Galasso & Langione firm bank accounts in the relevant time period; (2) an accounting to trace all disbursements from the Baron escrow account; (3) detailed bookkeeping records for the firm’s Signature Bank and M&T IOLA accounts; and (4) copies of documents relating to the financing and purchase of the office condominium.

        (n. cont’d)


author: Graffeo, J.

text:
    [979 NE2d 240, 955 NYS2d 296]
    The People of the State of New York, Respondent, v Norman Cajigas, Appellant.
    Argued September 7, 2012;
    decided October 23, 2012

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Jonathan M. Kirshbaum and Robert S. Dean of counsel), for appellant.
    The court erred in failing to charge the jury that the intent to commit a crime therein element of burglary cannot be satisfied by intended conduct that would not constitute a crime in the absence of a “stay away” provision in an order of protection. (People v VanDeWalle, 46 AD3d 1351, 10 NY3d 845; People v Lewis, 5 NY3d 546; People v Mahboubian, 74 NY2d 174; People v Gaines, 74 NY2d 358; People v Blacknall, 63 NY2d 912; People v Gilbo, 28 AD3d 945, 7 NY3d 756; People v Barlow, 70 AD3d 1489; People v Polanco, 279 AD2d 307, 96 NY2d 832; People v Cassidy, 40 NY2d 763; People v Duncan, 46 NY2d 74.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Britta Gilmore and Susan Gliner of counsel), for respondent.
    I. As the Appellate Division found, the “intent to commit a crime therein” element of defendant’s attempted burglary conviction was supported by evidence that was legally sufficient under both the common-law theory of that crime, as well as the alternative theory established by the statute which created orders of protection. (People v Lewis, 5 NY3d 546, 13 AD3d 208; People v Mahboubian, 74 NY2d 174; People v Mackey, 49 NY2d 274; People v Gilligan, 42 NY2d 969; People v Saunders, 210 AD2d 164; People v Melendez, 206 AD2d 270; People v Martin, 245 AD2d 833; People v Ponnapula, 229 AD2d 257.) II. The trial court properly instructed the jury that the intent to commit a crime element of burglary could be established by proof that when defendant illegally entered the victim’s apartment, he intended to engage in conduct violating at least one provision in the order of protection, other than the one that barred him from the victim’s residence. (People v VanDeWalle, 46 AD3d 1351; People v Ponnapula, 229 AD2d 257; People v Martinez, 83 NY2d 26; People v Lewis, 5 NY3d 546; People v Carpio, 39 AD3d 433; People v Polanco, 279 AD2d 307; People v Gilbo, 28 AD3d 945; People v Gaines, 74 NY2d 358.)
   OPINION OF THE COURT

Graffeo, J.

In this case involving the violation of an order of protection, we consider whether the mens rea element of burglary may be satisfied by an intent to commit an act that would not be illegal in the absence of the order.

In 2005, defendant Norman Cajigas moved into the apartment where his paramour, Maria, resided with her teenage daughter. He eventually became physically abusive toward the woman and moved out of the dwelling in October 2006. Defendant soon began to stalk Maria on a virtually daily basis. This behavior escalated to a physical assault in November 2006.

After that incident, Maria obtained an order of protection that required defendant to refrain from contacting her in any manner and to stay away from her, her residence and place of work. In April 2007, defendant violated the order by going to Maria’s home. He was charged with criminal contempt in the second degree and another order of protection was issued.

The following month, Maria and her daughter moved to a new apartment but defendant’s conduct continued, even after he was convicted of the pending second-degree contempt charge. In July, defendant spoke to Maria at a hair salon where she was a patron. Later that day, defendant confronted Maria on the street and did not leave her alone until he saw police officers approaching.

Several days after these incidents, Maria’s daughter was home alone when she heard someone trying to open the front door of the apartment. She saw defendant through the peephole and asked him what he wanted. After defendant backed away, the girl telephoned her mother and the police were summoned. Defendant then tried to put something into the lock to open the door. He fled after the girl spoke to him a second time.

Based on this incident, defendant was indicted for attempted burglary in the second degree and several counts of criminal contempt in the first degree. At trial, defense counsel argued that People v Lewis (5 NY3d 546 [2005]) and its progeny prevented the People from using a violation of the order of protection to prove two elements of burglary—unlawful entry and the intent to commit a crime therein. Although Lewis held that both components cannot be established by the violation of a “stay away” provision, the defense argued that the mens rea element also could not be satisfied by an intention to commit an act that would not be illegal—such as attempting to communicate with Maria or her daughter—but for the proscriptions of the order of protection. After extended discussions with counsel, Supreme Court declined to charge the jury as the defense requested, instead instructing that the intent element is established if defendant intended to violate a provision in the order other than the restriction prohibiting him from going to Maria’s apartment.

Juiy deliberations ensued and, in response to a note from the jury and over defendant’s renewed objection, Supreme Court explained that

“[a]s used in the definition of the crime of burglary, the element of intent—that is, the intent to commit a crime therein element of burglary—is not satisfied solely by a defendant’s intent to violate an Order of Protection by entering the dwelling that the Order of Protection declares off-limits.
“There must also be evidence that the defendant intended to engage in some of the conduct prohibited by the Order of Protection while in the banned premises beyond just staying away from the home of the personf,] or to engage in another separate crime.
“So, the element requires something beyond the notion of a trespass.
“Before a jury can find the intent to commit a crime therein element satisfied by an intent to violate an Order of Protection, the jury must find that the defendant intended to engage in conduct prohibited by the Order of Protection apart from the prohibition in the Order of Protection [that] the defendant not go to the home of the complainant.”

A similar supplemental instruction was issued after the jury sought further clarification.

Defendant was convicted on all counts and adjudicated a second violent felony offender. He was sentenced to 6V2 to 8 years in prison, along with five years of postrelease supervision. The Appellate Division affirmed, concluding that it was proper to deny defendant’s proposed jury instruction (82 AD3d 544, 546 [1st Dept 2011]). A Judge of this Court granted defendant leave to appeal (17 NY3d 814 [2011]).

Burglary, in its simplest form, is a trespass into a building coupled with the intent to commit a crime therein (see Penal Law § 140.20). Trespass occurs when the entry is knowingly unlawful (see Penal Law § 140.05). An order of protection, which typically requires a person to stay away from a victim’s home or place of employment and to refrain from any contact (see CPL 530.13 [1], [4]), can be used to establish a knowing and unlawful entry since going to a protected person’s home—even by invitation or permission—contravenes the terms of the order of protection (see People v Lewis, 5 NY3d at 552).

The issue here is whether the intent to do something inside the residence that would be legal in the absence of the order of protection establishes the requisite criminal state of mind to elevate the trespass to a burglary. Defendant asks us to adopt the Fourth Department’s rule that the intent element of burglary “cannot be satisfied by intended conduct that would be innocuous if the order of protection did not prohibit it” (People v VanDeWalle, 46 AD3d 1351, 1352 [4th Dept 2007], lv denied 10 NY3d 845 [2008]). The People, in contrast, rely on decisions by the First and Third Departments that held that a burglary conviction may be premised on an intent to engage in conduct that would be legal if it was not outlawed by an order of protection (see People v Carpio, 39 AD3d 433 [1st Dept 2007], lv denied 9 NY3d 873 [2007]; People v Gilbo, 28 AD3d 945 [3d Dept 2006], lv denied 7 NY3d 756 [2006]). We conclude that the principle articulated by the First and Third Departments is more consistent with the text of the burglary statutes and the rationale in Lewis.

To begin, the People are not required to prove the particular crime that the defendant intended to commit inside the burglarized structure (see e.g. People v Mahboubian, 74 NY2d 174, 193 [1989]). Except for the violation of a stay-away provision in an order of protection (see People v Lewis, 5 NY3d at 552-553), any crime will suffice under the burglary statutes (see Penal Law §§ 140.20, 140.25, 140.30). Actions that violate aspects of an order of protection may be prosecuted as criminal contempt in the second degree (see Penal Law § 215.50 [3] [a class A misdemeanor]), criminal contempt in the first degree (see Penal Law § 215.51 [b] [a class E felony]) or aggravated criminal contempt (see Penal Law § 215.52 [a class D felony]). The precise charge depends, of course, on the nature and severity of the violation. But the fact that the defendant’s actions would have been legal but for the issuance of the order of protection does not immunize such conduct from prosecution under these statutes. Hence, even an act that would otherwise not be illegal can be viewed as a crime and the intent to commit this act inside a building may be used to prove a burglary charge (see People v Lewis, 5 NY3d at 552-553 [aside from a violation of a stay-away provision, conduct that is “prohibited by an order of protection . . . can serve as predicate crimes for the ‘intent to commit a crime therein’ element of burglary”]).

These principles were properly applied by the trial court in response to defendant’s requested jury charge. The court instructed that the mens rea element of burglary would be satisfied if the jury found that “defendant intended to engage in some of the conduct prohibited by the Order of Protection while in the banned premises beyond just staying away from the home of the person[,] or to engage in another separate crime.”

We are mindful that an attempted or completed burglary premised on a violation of an order of protection may result in the prosecution of a relatively serious offense. A second-degree burglary charge, for example, is a class C violent felony punishable by a determinate prison term between 3V2 to 15 years plus a period of postrelease supervision (see Penal Law § 70.02 [1] [b] ; [3] [b]). Defendant’s attempt to commit the offense was a class D violent felony for which a determinate sentence from 2 to 7 years could be imposed (see Penal Law § 70.02 [1] [c]; [3] [c] ). In setting the classifications of these offenses, the legislature was most likely concerned that domestic violence and stalking were too prevalent and needed to be deterred with meaningful penal consequences, including those attendant to a burglary conviction. As the facts of this case demonstrate, perpetrators of these offenses frequently engage in persistent and often escalating courses of conduct that cause victims to be emotionally terrorized—if not worse.

We can conceive of scenarios under which punishments like these arguably could be viewed as disproportionate to the offense—such as when a paramour goes to the victim’s home at that person’s request or, as in VanDeWalle, to say a final goodbye. In these instances, prosecutorial discretion comes into play. Identifying where cases fall on the spectrum of seriousness ranging from misdemeanor crime to violent felony offense with mandatory prison time is a fundamental component of the District Attorney’s inherent discretion to file an appropriate charge at the outset of a prosecution (see generally People v Mattocks, 12 NY3d 326, 334 [2009]). For example, in their efforts to deal with the defendant in this case, the People’s initial prosecution was for misdemeanor assault and then second-degree criminal contempt. It was only after defendant’s behavior continued unabated that he was indicted for attempted second-degree burglary and first-degree criminal contempt. Although the facts underlying other cases may justify a charge of criminal contempt rather than burglary, defendant’s persistent and blatant disregard of the conditions of the orders of protection warranted the higher degree of culpability reflected in an attempted burglary conviction.

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

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

Order affirmed.


author: Ciparick, J. Jones, J. (dissenting).

text:
    [979 NE2d 1143, 955 NYS2d 817]
    Douglas Dean et al., Respondents, v Tower Insurance Company of New York, Appellant.
    Argued September 11, 2012;
    decided October 25, 2012

      POINTS OF COUNSEL

      Law Office of Max W. Gershweir, New York City (Max W. Gershweir of counsel), for appellant.
    I. In finding that “reside” is ambiguous under these circumstances, the Appellate Division disregarded the plain and ordinary meaning of the term, and well-settled legal precedent, which requires an established use of the premises as the putative resident’s dwelling place. (Breed v Insurance Co. of N. Am., 46 NY2d 351; Incorporated Vil. of Cedarhurst v Hanover Ins. Co., 89 NY2d 293; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321; Vela v Tower Ins. Co. of N.Y., 83 AD3d 1050; Matter of Allstate Ins. Co. [Rapp], 7 AD3d 302; New York Cent. Mut. Fire Ins. Co. v Kowalski, 195 AD2d 940; Commisso v Tower Ins. Co. of N.Y., 30 Misc 3d 1224[A], 2011 NY Slip Op 50190[U]; Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385; Antone v General Motors Corp., Buick Motor Div., 64 NY2d 20; Rawstorne v Maguire, 265 NY 204.) II. There is no permissible basis for reading the residency requirement out of the policy. (Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 5 NY3d 157; Barhydt v Ellis, 45 NY 107; Hartford Ins. Co. of Midwest v Halt, 223 AD2d 204; New York Cent. Mut. Fire Ins. Co. v Peckey, 298 AD2d 970; Dutkanych v United States Fid. & Guar. Co., 252 AD2d 537; People v O’Hara, 96 NY2d 378; American Home Prods. Corp. v Liberty Mut. Ins. Co., 565 F Supp 1485, 748 F2d 760; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321;
      Slayko v Security Mut. Ins. Co., 98 NY2d 289; McLaughlin v Nationwide Mut. Fire Ins. Co., 8 AD3d 739.) III. Tower Insurance Company of New York is entitled to summary judgment on the alternative ground that plaintiffs materially misrepresented in the insurance application that the premises were their primary residence and that they did not occupy any other premises. (Aguilar v United States Life Ins. Co. in City of N.Y., 162 AD2d 209.)

      Bleakley Platt & Schmidt, LLP, White Plains (Robert D. Meade and Susan E. Galváo of counsel), for respondents.
    I. Tower Insurance Company of New York’s proposed construction of the term “residence premises” violates the Insurance Law, which sets minimum standards of coverage for the fire insurance policies. (Medical Facilities v Pryke, 62 NY2d 716; New England Mut. Life Ins. Co. v Doe, 93 NY2d 122; Planet Ins. Co. v Bright Bay Classic Vehs., 75 NY2d 394; Lane v Security Mut. Ins. Co., 96 NY2d 1.) II. The term “residence premises” is ambiguous. (Sekulow v Nationwide Mut. Ins. Co., 193 AD2d 395; Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; MDW Enters. v CNA Ins. Co., 4 AD3d 338; Matter of Vanguard Ins. Co. [Polchlopek], 18 NY2d 376.) III. The decisions in Vela v Tower Ins. Co. of N.Y. (83 AD3d 1050 [2d Dept 2011]) and Commisso v Tower Ins. Co. of N.Y. (30 Misc 3d 1224[A], 2011 NY Slip Op 50190[U] [Sup Ct, NY County 2011]) are not controlling, as they are distinguishable in material respects. IV Tower Insurance Company of New York sought summary judgment on a ground not raised in its letter denying the claim. (Paul M. Maintenance, Inc. v Transcontinental Ins. Co., 300 AD2d 209; Herrman v Adriatic Fire Ins. Co., 85 NY 162; Gallo v Travelers Prop. Cas., 21 AD3d 1379; Page v Nationwide Mut. Fire Ins. Co., 15 AD2d 306; Perrotta v Middlesex Mut. Ins. Co., 37 AD2d 783.) V Plaintiffs were entitled to first-party coverage for a fire loss involving a dwelling being built by the insured pursuant to policy paragraph 4F. (Tower Ins. Co. of N.Y. v Diaz, 58 AD3d 495; Westview Assoc. v Guaranty Natl. Ins. Co., 95 NY2d 334; McCarthy v New York Prop. Ins. Underwriting Assn., 158 AD2d 961; MDW Enters. v CNA Ins. Co., 4 AD3d 338; TAG 380, LLC v ComMet 380, Inc., 10 NY3d 507; Property Clerk, N.Y. City Police Dept. v Pagano, 170 AD2d 30.) VI. Tower Insurance Company of New York waived the right to deny this claim. (Prudential Ins. Co. of Am. v BMC Indus., Inc., 630 F Supp 1298.) VII. Plaintiffs did not misrepresent any facts in the application for this policy or otherwise act inequitably. (Woodruff v Imperial Fire Ins. Co. of London, 83 NY 133.)
   OPINION OF THE COURT

Ciparick, J.

This appeal requires us to determine whether the term “residence premises” in an insurance contract is ambiguous where an insured purchased a homeowners’ policy in advance of a closing but was unable to move in due to the need for major repairs. We conclude that under the circumstances of this case the term is ambiguous, precluding summary judgment.

Plaintiffs Douglas and Joanna Dean entered into a contract to purchase a home in Irvington in February 2005. The closing was scheduled to take place on March 31, 2005. Plaintiffs acquired a homeowners’ insurance policy from defendant Tower Insurance Company of New York (Tower) effective as of the closing date. The closing was delayed until May 20, 2005. After the closing, plaintiffs discovered extensive termite damage to the house. Douglas Dean, with the help of family and friends, began the process of repairing the damage. Work on the house progressed over the course of the year following the closing, and the policy was renewed in March 2006. The renovations were substantially completed when, on May 15, 2006, a fire completely destroyed the house.

The morning after the fire, plaintiffs gave notice to Tower. On June 22, 2006, Tower disclaimed coverage on the ground that “[o]ur investigation revealed the dwelling was unoccupied at the time of the loss. Accordingly, this dwelling does not qualify as a ‘residence premises’ [sic] there is no coverage for this claim under your policy.” Secondarily, Tower disclaimed coverage on the ground that plaintiffs engaged in fraud by misrepresenting their intent to live in the premises on the application submitted in advance of acquiring the policy.

The Tower policy provides as follows: “We cover: 1. The dwelling on the ‘residence premises’ shown in the Declarations, including structures attached to the dwelling.” In the definitions section, “residence premises” is defined as: “The one family dwelling . . . where you reside.” The term reside is not defined in the policy.

Plaintiffs commenced this action for breach of the insurance contract. Following discovery, both parties moved for summary judgment. Supreme Court granted Tower’s motion, denied plaintiffs’ motion and dismissed the complaint. The court held that the term “reside” is clear and unambiguous, and that plaintiffs never established residency at the premises and “[a]t best . . . established ownership of the house and presence in it to perform certain renovations, and a stated intent of living there” (2010 NY Slip Op 31107[U], *9 [2010]). The Appellate Division modified the order of Supreme Court, finding that Tower failed to satisfy its prima facie burden on a motion for summary judgment (see Dean v Tower Ins. Co. of N.Y., 84 AD3d 499 [1st Dept 2011]). It concluded that the “residence premises” requirement in the policy failed to define what qualifies “as ‘resides’ for the purpose of attaching coverage” and that the “policy [was] ambiguous in the circumstances of this case” and otherwise denied summary judgment (id. at 499-500). The Appellate Division granted Tower leave to appeal to this Court on a certified question (2011 NY Slip Op 82928[U] [2011]). We agree with the Appellate Division and now affirm.

“Insurance contracts must be interpreted according to common speech and consistent with the reasonable expectation of the average insured” (Cragg v Allstate Indem. Corp., 17 NY3d 118, 122 [2011]). “[B]efore an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, and that they are subject to no other reasonable interpretation” (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984] [citations omitted]). “[A]mbiguities in an insurance policy are to be construed against the insurer” (Breed v Insurance Co. of N. Am., 46 NY2d 351, 353 [1978]).

“The standard for determining residency for purposes of insurance coverage requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain” (Government Empls. Ins. Co. v Paolicelli, 303 AD2d 633, 633 [2d Dept 2003] [internal quotation marks omitted]; see also Matter of Aetna Cas. & Sur. Co. v Gutstein, 80 NY2d 773, 775 [1992]; Matter of Allstate Ins. Co. [Rapp], 7 AD3d 302, 303 [1st Dept 2004]). Plaintiff Douglas Dean claimed that between the date of the closing and the date of the fire he was generally at the property at least five days a week. He would go there after work between 4:00 and 5:00 p.m. and leave no earlier than 10:00 p.m. and would frequently stay late into the night or early morning. He also averred that he had built a table for eating purposes and would eat at the house everyday, sometimes with other workers, and that he slept there on several occasions. Therefore, there are issues of fact as to whether Douglas’ daily presence in the house, coupled with his intent to eventually move in with his family, is sufficient to satisfy the insurance policy’s requirements (cf. Vela v Tower Ins. Co. of N.Y., 83 AD3d 1050, 1051 [2d Dept 2011], lv granted 2011 NY Slip Op 85357[U] [2d Dept 2011], appeal withdrawn 18 NY3d 881 [2012]).

Further, because the term “reside” is not defined in the contract making the term “residence premises” ambiguous, it is arguable that the reasonable expectation of an average insured (see Cragg, 17 NY3d at 122) is that occupancy of the premises would satisfy the policy’s requirements. Notably, the standard fire policy as provided in Insurance Law § 3404 (e) speaks in terms of occupancy, and Insurance Law § 3404 (f) (1) (A) states that a policy “with respect to the peril of fire” cannot contain provisions “less favorable to the insured than those contained in the standard fire policy.” Additionally, Tower’s letter disclaiming coverage also speaks in terms of occupancy. Courts have held that “[a] householder need not necessarily have conventional, or, indeed, any furniture in a house to occupy it. His presence in it for sleeping and eating and working purposes can literally constitute occupancy. He can, if he will, sleep and eat on the floor or on improvised devices” (Page v Nationwide Mut. Fire Ins. Co., 15 AD2d 306, 307 [3d Dept 1962]; see also Perrotta v Middlesex Mut. Ins. Co., 37 AD2d 783, 783 [2d Dept 1971]). Thus, there are issues of fact rendering summary judgment inappropriate in this matter.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Jones, J. (dissenting).

The homeowners’ policy at issue on this appeal provides coverage for a “residence premises” which is defined as the “family dwelling, other structures, and grounds,” or “[t]hat part of any . . . building . . . where you reside.” Thus, the proper inquiry is whether plaintiffs resided at the subject premises—an outcome predicated on the simple application of the plain meaning of the term “reside” to the policy. The majority declines to do so, however, agreeing with the Appellate Division that the absence of an express definition of “reside,” coupled with plaintiffs’ tendered proof that they were engaged in daily renovations inside the premises, renders the phrase “residence premises” ambiguous and precludes Tower’s entitlement to summary judgment. In my view, plaintiffs’ activity falls short of demonstrating the physical permanence needed to establish that the subject property was their residence. Therefore, I respectfully dissent.

“The standard for determining residency for insurance coverage requires something more than temporary or physical presence and ... at least some degree of permanence and intention to remain” (Matter of Allstate Ins. Co. [Rapp], 7 AD3d 302, 303 [1st Dept 2004], quoting Government Empls. Ins. Co. v Paolicelli, 303 AD2d 633, 633 [2d Dept 2003] [internal quotation marks omitted]). A resident is defined as “one who lives in the household with a certain degree of permanency and intention to remain” (id., quoting Canfield v Peerless Ins. Co., 262 AD2d 934, 934-935 [4th Dept 1999]).

Applying the plain definition of “reside” to the policy, it is evident that plaintiffs had not established the property as a “residence premises.” Plaintiff Douglas Dean attested that leading up to the date of the fire, he would enter the property at least five days a week to perform renovation work, occasionally staying until late night or early morning. Although he ate meals and napped in the premises, significantly, he never stayed overnight and always returned to plaintiffs’ residence of the previous seven years. Indeed, plaintiffs continued to reside in their previous home and, put simply, failed to physically move into the subject premises. Thus, Douglas Dean’s testimony demonstrates ownership, an intention to reside at the subject premises, and recurrent presence inside the property for the purpose of renovation, but not the necessary “degree of permanence” to establish a residence.

Inexplicably, the majority declines to apply the plain meaning of the term “reside” when we have previously accorded unambiguous terms within insurance policies their plain and ordinary meaning (see Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864 [1977] [“While it is true that policies of insurance are to be construed liberally in favor of the insured and strictly against the insurer, where the provisions of the policy are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement”]; New England Mut. Life Ins. Co. v Doe, 93 NY2d 122, 130 [1999] [Court applied the plain meaning to the term “exist,” noting that “[e]xist means exist”]; Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177 [2008]; White v Continental Cas. Co., 9 NY3d 264, 267 [2007]). Instead, by finding an ambiguity with the term “residence premises,” the majority argues that the case should turn on the issue of “occupancy” because “it is arguable that the reasonable expectation of an average insured is that occupancy of the premises would satisfy the policy’s requirements” (majority op at 709 [citation omitted]). The majority appears to take particular issue with Tower’s disclaimer letter which stated: “Our investigation revealed the dwelling was unoccupied at the time of the loss. Accordingly, this dwelling does not qualify as a ‘residence premises’ [sic] there is no coverage for this claim under your policy.” It is evident, however, that Tower disclaimed coverage on the ground that “this dwelling does not qualify as a ‘residence premises’ ” because it was not occupied in a manner that established the property as a residence. The terms “reside” and “occupy” should not be conflated to circumvent the governing terms of the policy, notwithstanding the reference to “occupancy” in the disclaimer letter and Insurance Law § 3404 (e). The issue is plainly whether the property was a “residence premises” and Tower amply demonstrated its entitlement to judgment as a matter of law (see Vela v Tower Ins. Co. of N.Y., 83 AD3d 1050 [2d Dept 2011]; Marshall v Tower Ins. Co. of N.Y., 44 AD3d 1014 [2d Dept 2007]; Commisso v Tower Ins. Co. of N.Y., 30 Misc 3d 1224[A], 2011 NY Slip Op 50190[U] [Sup Ct, NY County 2011]). Because plaintiffs’ evidence failed to raise a triable issue of fact, I would reverse the order of the Appellate Division.

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

Order affirmed, with costs, and certified question answered in the affirmative.

       While not determinative, the disclaimer letter is indicative that the reasonable expectation of an average insured, under these facts, is that occupancy is sufficient to establish coverage.

       It is arguable whether plaintiffs even established occupancy (see Page v Nationwide Mut. Fire Ins. Co., 15 AD2d 306, 307 [3d Dept 1962] [“Of course, the mere renovation of a house with no one staying there during the process does not make out occupancy”]).