author: Per Curiam.

text:
    [54 NE3d 61, 34 NYS3d 389]
    Susan Larabee et al., Appellants, v Governor of the State of New York et al., Respondents. Arlene R. Silverman, Acting Justice, New York State Supreme Court, Appellant, v Sheldon Silver, as Speaker of the New York State Assembly, et al., Respondents.
    Argued March 23, 2016;
    decided May 10, 2016

      Cohen & Gresser LLP, New York City (Thomas E. Bezanson, Alexandra Wald and Matthew V. Povolny of counsel), and George Bundy Smith, Senior & Associates, P.C., New York City (George Bundy Smith, Sr., of counsel), for appellants in the first above-entitled action.

      Arlene R. Silverman, New York City, appellant pro se in the second above-entitled action.

      Eric T. Schneiderman, Attorney General, New York City (An-isha S. Dasgupta, Mark H. Shawhan and Barbara D. Underwood of counsel), for respondents in the first and second above-entitled actions.

      Stroock & Stroock & Lavan LLP, New York City (Joseph L. Forstadt, Alan M. Klinger, Ernst H. Rosenberger, Burton N. Lipshie, Dina Kolker and Lee M. Leviter of counsel), for Association of Justices of the Supreme Court of the State of New York and others, amici curiae.
   OPINION OF THE COURT

Per Curiam.

In three consolidated appeals in Matter of Maron v Silver (14 NY3d 230 [2010]), we addressed the legislature’s and the Governor’s practice of directly and explicitly tying consideration of judicial compensation to unrelated policy initiatives during the years 2006, 2007 and 2008 (see id. at 245, 257). We concluded that this practice, called linkage, violated the separation of powers doctrine by undermining judicial independence, and we issued a declaration to that effect (see id. at 260-261). In response to our decision in Matter of Marón, the legislature passed, and the Governor signed, legislation establishing an independent Commission on Judicial Compensation, which was empowered to recommend prospective judicial compensation increases at four-year intervals after the effective date of the legislation (see L 2010, ch 567). Under this new law, when the Commission recommends an increase in judicial salaries, the increase goes into effect by operation of law on April 1 of the year for which it is recommended, unless the legislature passes a statute rejecting the recommended pay raise (see id.). It is undisputed that, through this legislatively-created process, the issue of judicial compensation now receives consideration independent of other political matters. Nonetheless, plaintiffs in the instant consolidated appeals assert that the legislature’s and the Governor’s creation of the Commission was inadequate to remedy the constitutional violation that led to our decision in Matter of Marón, and hence plaintiffs ask us to award them money damages. This we decline to do.

Plaintiffs here are current and retired judges and justices of the New York court system who served without any increase in their compensation during the period in which the political branches of government engaged in the practice of linkage. Plaintiffs were also parties to the consolidated cases decided in Matter of Marón. They seek an award of money damages in the amount of the pay raises that they believe they would have received had the legislature and the Governor not linked consideration of such raises to unrelated policy matters, asserting that those damages are necessary to fully remedy the constitutional violation identified in Matter of Marón. More specifically, plaintiffs argue that the political branches’ violation of the separation of powers doctrine via linkage caused plaintiffs economic injury which was not adequately remedied by the establishment of the Commission because the enabling legislation for the Commission authorizes only prospective raises, and therefore the Commission cannot provide the judges with the increased compensation which has already been unconstitutionally denied them during the years of linkage.

However, plaintiffs’ bid for damages must fail because it rests on the false premise that, in Matter of Marón, we concluded that the political branches’ practice of linkage deprived state judges of raises to which they were constitutionally entitled. In that case, we simply decided that the State had unconstitutionally compromised the independence of the judiciary over the course of three years by linking any decision on whether to increase judges’ salaries with other legislative initiatives such as the enactment of legislative pay increases and campaign finance reform (see Matter of Maron, 14 NY3d at 245-246, 260-261). Thus, we “h[e]ld that under these circumstances, as a matter of law, the State defendants’ failure to consider judicial compensation on the merits violate [d] the Separation of Powers Doctrine” (id. at 261).

Importantly, in concluding that linkage was unconstitutional, we refused to rule that the State also violated the separation of powers doctrine by refusing to increase judicial salaries during the years in which it had engaged in the practice of linkage. Indeed, although the plaintiffs in Chief Judge of the State of N.Y. v Governor of the State of N.Y., which was one of the consolidated appeals before us in Matter of Maron, argued that the State had violated the separation of powers doctrine by keeping judicial compensation at such a low level in the linkage years (see id. at 261-262), we did not declare the State’s failure to raise judicial pay in the linkage period to be a violation of the separation of powers doctrine. Instead, we determined that the plaintiffs’ argument in that respect was “best addressed in the first instance by the Legislature” (id. at 262). Accordingly, in Matter of Marón, we declined to hold that the State had violated the separation of powers doctrine by refusing to increase judicial pay during the years where linkage had occurred, and hence plaintiffs here cannot obtain retroactive monetary relief as compensation for the State’s failure to grant them raises to which they were not constitutionally entitled.

Consistent with our conclusion that the State’s decision-making process regarding judicial compensation, as opposed to the ultimate decision itself, violated the State Constitution, we recognized in Matter of Marón that damages were not an appropriate cure for the State’s unlawful deliberative approach. So it was that, in two of the consolidated cases in Matter of Maron, we ordered only declaratory relief, and we modified the Appellate Division’s orders, which had directed the State to calculate and grant a cost-of-living increase in judicial compensation (see Chief Judge of State of N.Y. v Governor of State of N.Y., 25 Misc 3d 268, 273 [Sup Ct, NY County 2009], affd 65 AD3d 898 [1st Dept 2009]; Larabee v Governor of State of N.Y., 65 AD3d 74, 100 [1st Dept 2009]), by effectively replacing those orders of monetary relief with judgments declaring that linkage was unconstitutional (see Matter of Maron, 14 NY3d at 261, 263-264). In pronouncing this remedy, we suggested that money damages would be an inappropriate form of relief from the State’s unconstitutional linkage practice because any mandate that the State pay money damages would, as a practical matter, be tantamount to a directive to increase judicial compensation in a manner that would arrogate the legislative branch’s budgetary powers to the judiciary. Thus, we observed that, in fashioning a remedy, “deference to the Legislature — which possesses the constitutional authority to budget and appropriate — is necessary” (id. at 261) and that “whether judicial compensation should be adjusted, and by how much, is within the province of the Legislature” (id. at 263).

Nonetheless, here, plaintiffs argue that the State owes them retroactive money damages because the State has allegedly failed to act consistently with our statement in Matter of Ma-rón that we “expect appropriate and expeditious legislative consideration” of judicial compensation (Matter of Maron, 14 NY3d at 263). Plaintiffs seem to suggest that, once we held that the legislature failed to properly consider whether to increase judicial pay during the linkage years, the only appropriate consideration the legislature could give to the issue was a decision to retroactively raise judicial compensation. But, we never said as much in Matter of Marón, and in fact we suggested that a court order mandating retroactive raises would be unlawful. Thus, we expected appropriate consideration of judicial compensation in the form of a linkage-free evaluation of the issue, not in the form of automatic payment of retroactive raises.

Finally, plaintiffs claim that generally violations of the separation of powers doctrine must be remedied by an award of money damages and that therefore the State’s previous disregard of separation of powers principles via linkage requires the State to pay damages to plaintiffs. But, not every governmental actor’s breach of the separation of powers doctrine automatically compels the wrongdoer to pay damages. Even assuming that the articles of the State Constitution that establish the separation of powers doctrine are self-executing provisions that can sometimes support an individual claim for money damages (see 62 NY Jur 2d, Government Tort Liability § 28), the State’s particular violation of the doctrine here did not meet the remaining typical prerequisites for a damages award, such as the requirements that alternative remedies are inadequate to remedy the harm, that monetary relief is needed to deter future constitutional violations and that a monetary remedy has been historically recognized at common law (see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Brown v State of New York, 89 NY2d 172, 189-192 [1996]; Restatement [Second] of Torts § 874A). Certainly, a grant of money damages is unnecessary to deter future constitutional violations of the kind at issue in this case because the legislature’s establishment of the Commission on Judicial Compensation will ensure routine independent consideration of judicial compensation on the merits going forward, thereby preventing any unconstitutional linkage in the future. And, aside from advancing the untenable notion that the State’s past practice of linkage directly caused them to lose pay increases which they inevitably would have received and must now be paid by the State, plaintiffs do not contend that the State’s creation of the Commission in response to Matter of Marón was either inadequate to remedy the structural harm caused by linkage or noncompliant with our declaration in that case. Thus, regardless of whether damages are a necessary or historically-recognized remedy for other transgressions against the separation of powers doctrine, the particular constitutional violation at issue here does not warrant an award of damages.

In sum, neither Matter of Marón nor any other authority permits us to grant monetary relief to plaintiffs here. Accordingly, in both cases before us, the orders of the Appellate Division should be affirmed, without costs.

Judges Pigott, Rivera, Abdus-Salaam, Fahey and Garcia concur; Chief Judge DiFiore and Judge Stein taking no part.

In each case: Order affirmed, without costs.

      . More precisely, in one of the consolidated cases, Matter of Marón, we reinstated the plaintiffs’ cause of action based on the State’s violation of the separation of powers doctrine, and in the two other cases, we granted declaratory relief, saying:
      “As that case [Matter of Maron] is here before us on a CPLR 3211 motion to dismiss, our corrective action is limited to a reinstatement of that cause of action. In Larabee and Chief Judge, the procedural posture of the cases is not so limiting and we may now issue a declaration. We hold that under these circumstances, as a matter of law, the State defendants’ failure to consider judicial compensation on the merits violates the Separation of Powers Doctrine.” (Matter of Maron, 14 NY3d at 261 [emphases added].)

      . Plaintiffs note that, in Matter of Maron, we said that the legislature, in considering judicial compensation, should “keep in mind, however, that whether the Legislature has met its constitutional obligations in that regard is within the province of this Court” (id. at 263). Plaintiffs claim that, by this statement, we offered the State an opportunity to voluntarily grant retroactive pay raises to judges and signaled that, if the State did not provide such raises, we would return this matter to our “province” by ordering damages. But, in the aforementioned statement, we did not suggest that state judges have a judicially enforceable constitutional right to retroactive compensation increases, which must be supplied either by the voluntary action of the State or by a court order. Rather, in the referenced statement, we simply observed that we retain the continuing power to review the State’s handling of judicial compensation for compliance with the separation of powers doctrine. Had we believed that the State had to compensate judges for the lack of pay increases during the years of linkage or else pay damages, we would have ordered the State to satisfy its alleged constitutional obligation to grant retroactive pay increases by paying damages to the plaintiffs in Matter of Maron, and we would not have given the State extra time to decide whether or not to provide the backpay that was, according to plaintiffs, owed to them under the Constitution. Of course, the legislature was free to provide for retroactive pay increases, but our decision in that case did not mandate such action.


source: Caselaw Access Project

author: Chief Judge DiFiore.

license: Public Domain

text:
    [54 NE3d 66, 34 NYS3d 394]
    Adam Plotch, Appellant, v Citibank, N.A., Respondent.
    Argued March 24, 2016;
    decided May 10, 2016

      D’Agostino Levine Landesman & Lederman, LLP, New York City (Bruce H. Lederman and Eric R. Garcia of counsel), and Joel David Sharrow, Staatsburgh, for appellant.

      Lemery Greisler LLC, Albany (Paul A. Levine and Peter M. Damin of counsel), for respondent.

      Gallet Dreyer & Berkey, LLP, New York City (Marc Luxemburg and Edward M. Cuddy, III, of counsel), for Council of New York Cooperatives and Condominiums, amicus curiae.
   OPINION OF THE COURT

Chief Judge DiFiore.

Plaintiff was the winning bidder in a foreclosure action in which he purchased a condominium unit subject to “[t]he first Mortgage of record against the premises.” The foreclosure action was commenced by the condominium board to recover unpaid common charges owed by the previous unit owner. The issue in this appeal is whether two mortgages that were consolidated into a single mortgage lien years before the condominium board filed its common charges lien qualify as the first mortgage of record under Real Property Law article 9-B, the Condominium Act. We hold that they do, and therefore affirm the order of the Appellate Division.

In July 2000, defendant Citibank, N.A. extended a mortgage for $54,000 to the previous unit owner, which was recorded. The following year, Citibank extended a second mortgage for $38,000 to the owner and entered into a consolidation agreement with him whereby the two mortgages were consolidated “into a single mortgage lien” for $92,000, which the owner and Citibank intended to be treated as a single mortgage. Both the second mortgage and the consolidation agreement were recorded on the same day. Approximately seven years later, the condominium board filed a common charges lien against the unit for unpaid common charges.

Plaintiff purchased the condominium unit for $15,100 in a foreclosure action in 2010 subject to “[t]he first Mortgage of record against the premises.” Plaintiff subsequently commenced this action seeking, among other things, a judgment declaring that the second mortgage for $38,000 held by defendant Citibank was subordinate to the subsequently recorded common charges lien under Real Property Law § 339-z and was therefore extinguished by the condominium board’s successful foreclosure action. Plaintiff moved for summary judgment. Citibank opposed and cross-moved for summary judgment. Citibank sought, among other things, a declaration that the consolidation agreement was the first mortgage of record under the Condominium Act. Supreme Court denied plaintiff’s motion for summary judgment and granted the branch of defendant’s motion seeking a declaration that the consolidation agreement was the first mortgage of record. The court found that plaintiff purchased the unit subject to the consolidated $92,000 Citibank mortgage, not the initial $54,000 Citibank mortgage.

The Appellate Division affirmed and remitted the matter to the Supreme Court for entry of judgment declaring that the consolidation agreement was the first mortgage of record against the premises (120 AD3d 1210 [2d Dept 2014]). This Court granted plaintiff leave to appeal (25 NY3d 905 [2015]).

Normally, the priority of liens is determined by the chronology of recording (see Real Property Law § 291). However, Real Property Law § 339-z provides that a condominium board’s lien for unpaid common charges has priority over other liens, except for certain statutory exceptions; those statutory exceptions expressly include a first mortgage of record. Specifically, Real Property Law § 339-z states that a “board of managers, on behalf of the unit owners, shall have a lien on each unit for the unpaid common charges thereof, together with interest thereon, prior to all other liens except only . . . (ii) all sums unpaid on a first mortgage of record.”

Plaintiff maintains that the phrase “first mortgage of record” means solely the mortgage recorded earliest in time, and that a consolidated mortgage must therefore be broken down into its component mortgages in order to identify the “first mortgage of record.” Citibank argues that the consolidation agreement qualifies as the “first mortgage of record” and that plaintiff therefore purchased the condominium unit subject to the consolidated $92,000 mortgage.

Plaintiff relies heavily on Societe Generale v Charles & Co. Acquisition (157 Misc 2d 643 [Sup Ct, NY County 1993]). There, as in the instant case, the second mortgage and consolidation agreement were recorded prior to the board’s lien for unpaid common charges. That court held that only the original first mortgage had priority over the condominium board’s lien.

Since Societe Generale, however, numerous lower courts have reached the opposite result and held that a consolidation agreement, recorded prior to the board’s common charges lien, qualifies as the first mortgage of record for the purposes of Real Property Law § 339-z (see e.g. Dime Sav. Bank of N.Y. v Levy, 161 Misc 2d 480 [Sup Ct, Rockland County 1994]; Greenpoint Bank v El-Basary, 184 Misc 2d 888 [Sup Ct, NY County 2000]; AMT CADC Venture, LLC v 455 CPW, L.L.C., 45 Misc 3d 176 [Sup Ct, NY County 2013]; Plotch v US Bank N.A., 129 AD3d 813 [2d Dept 2015]).

The courts recognize the well-settled principle that a consolidation “agreement is an instrument of convenience for the contracting parties only” (Dime, 161 Misc 2d at 482). A consolidation agreement, however, “cannot adversely affect, impair or derogate the priorities of any lien which has intervened between the respective dates of execution and delivery of the two consolidated mortgages” (id. at 482 [emphasis added]). Rather, “for purposes of determining priority when there is an intervening lien, the mortgages retain their separate-lien status” (id.). In that scenario, the consolidation agreement would not be considered the “first mortgage of record.”

This case presents a different situation. Here, there was no intervening lien at the time the loans were consolidated. Indeed, the board did not file its lien until approximately seven years after the consolidation agreement was recorded. The consolidation agreement in this case did not interfere with any rights of the condominium board.

The lower courts have noted the negative practical implications of giving priority to a common charges lien recorded years after the filing of a consolidation agreement. Plainly, such a result might adversely affect the ability of a homeowner to refinance. In addition, as observed by the Supreme Court in Greenpoint, Real Property Law § 339-z “does not preclude a condominium owner from refinancing by satisfying a prior mortgage and obtaining another first mortgage in a larger amount” and that “[u]nder such circumstances, there is no question that the new first mortgage would take priority over the Board’s lien” (Greenpoint, 184 Misc 2d at 892). If this Court were to hold that the consolidation agreement did not qualify as the first mortgage of record, banks and condominium owners would simply take additional steps to satisfy the original mortgage, take out a new mortgage, and pay the additional fees required to achieve precisely the same result.

Given the practical realities of this case, we agree with the Appellate Division that the agreement between Citibank and the previous unit owner to consolidate the mortgages “into a single mortgage lien,” recorded years before the common charges lien, qualifies as the “first mortgage of record.” To hold otherwise places form over substance. Indeed, the ease with which a formulaic application of the term “first mortgage of record” can be manipulated demonstrates that such holding would not promote the statutory purpose.

In that regard, we note that the legislature has amended Real Property Law § 339-z numerous times, most recently in 2004. We presume the legislature is on notice of the litigation involving Real Property Law § 339-z and it has the opportunity to amend the statute if it chooses to do so.

Finally, the Condominium Act was enacted “to stimulate greater building activity throughout the State and to allow private enterprise to supply additional housing units, particularly in the middle income rental range” (Mem of Joint Legis Comm on Hous and Urban Dev, Bill Jacket, L 1964, ch 82 at 4, 1964 McKinney’s Session Laws of NY at 1840). Our holding today does not frustrate the intent of the statute; to the contrary, it allows condominium unit owners greater flexibility in obtaining a larger mortgage or refinancing.

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

Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur; Judge Garcia taking no part.

Order affirmed, with costs.


author: Pigott, J.

text:
    [54 NE3d 71, 34 NYS3d 399]
    The People of the State of New York, Respondent, v Ronald D. Rossborough, Appellant.
    Argued April 26, 2016;
    decided June 2, 2016

      Christine Seppeler, Rochester, for appellant.

      Donald G. O’Geen, District Attorney, Warsaw (Eric R. Schie-ner of counsel), for respondent.
   OPINION OF THE COURT

Pigott, J.

The issue on this appeal is whether a defendant who pleaded guilty to a felony may waive his or her right to be present at sentencing. We hold that such a waiver is permissible under the circumstances herein.

After committing a series of crimes in three different counties, defendant took pleas in each, the last being in Wyoming County. There, defendant was charged with three counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25), attempted grand larceny in the third degree (Penal Law §§ 110.00, 155.35) and grand larceny in the third degree (Penal Law § 155.35). He pleaded guilty to grand larceny in the third degree (a class D felony) in full satisfaction of the indictment on the condition that he would be sentenced as a second felony offender to an indeterminate term of 3 to 6 years’ imprisonment to run concurrently with sentences he was serving for convictions in Allegany and Chemung Counties.

At the plea proceeding, County Court accepted defendant’s plea, adjudicated him a second felony offender, and set a sentencing date. Defense counsel informed the court that defendant wanted to waive his personal appearance at sentencing. After apprising defendant of his “absolute right to be here for the sentencing,” the court stated that if defendant wished to appear at sentencing solely by his attorney, he could do so. The court cautioned, however, that should it disagree with the proposed sentence or if circumstances indicated that the negotiated plea agreement would not be honored, defendant would have to appear for sentencing. The court reiterated the terms of the plea agreement to defendant, and, upon receiving assurances that defendant understood the terms and “absolutely” wanted to waive his personal appearance at sentencing, granted defendant’s request.

On the date of sentencing, defense counsel appeared on defendant’s behalf. The court explained that it had received the presentence report and asked defense counsel if he had anything to add and inquired if there were any errors in the report. When counsel responded that the report was satisfactory, the court sentenced defendant in accordance with the plea agreement.

On appeal, defendant argued that County Court erred in sentencing him in absentia citing Criminal Procedure Law § 380.40. The Appellate Division rejected defendant’s contention, holding that the record established “that defendant waived his right to be present at sentencing, having specifically requested at the plea proceeding that he be permitted to waive his personal appearance at sentencing” (113 AD3d 1114, 1114 [4th Dept 2014], citing People v Condon, 10 AD3d 811, 812-813 [3d Dept 2004], lv denied 4 NY3d 742 [2004]). A Judge of this Court granted defendant leave to appeal (24 NY3d 964 [2014]), and we now affirm.

Defendant contends that County Court violated CPL 380.40 (1) by permitting him to waive his presence for sentencing and in pronouncing judgment in his absence. We disagree. CPL 380.40 provides, with limited exceptions, that the “defendant must be personally present at the time sentence is pronounced” (CPL 380.40 [1]). In situations where the sentence is to be pronounced for a misdemeanor or petty offense, a defendant may move to dispense with the personal presence requirement, and, with the court’s permission, may be sentenced in absentia so long as the defendant executes a waiver “reciting the maximum sentence that may be imposed for the offense and stating that the defendant waives the right to be personally present at the time sentence is pronounced” (CPL 380.40 [2]). On its face, the statute provides for no similar exception for felony defendants.

But this Court has recognized exceptions to the general rule that a defendant convicted of a felony must be personally present at sentencing. A defendant who absconds during trial or before sentencing, for example, is said to forfeit any right to be present (see People v Corley, 67 NY2d 105, 109-110 [1986]; People v Rivera, 65 NY2d 436, 444 [1985] [“a defendant who is properly tried in absentia may during his continued absence also be sentenced in absentia” (emphasis omitted)]).

This case, one of first impression, presents the question whether a defendant convicted of a felony may expressly waive the right to be present at sentencing. In People v Stroman (36 NY2d 939 [1975]), we declined to find an implied waiver of that right where the defendant was sentenced in absentia, notwithstanding the fact that defendant was in a detention pen adjacent to the courtroom (see id. at 940). We held that waiver could not be implied because no effort had been made to apprise the defendant of his right to be present, nor had there been any attempt to bring the defendant into the courtroom (see id.).

We conclude, however, that a defendant may expressly waive his right to be present. “[W]aiver results from a knowing, voluntary and intelligent decision” (Corley, 67 NY2d at 110). Although CPL 380.40 protects a defendant’s fundamental right to be present at sentencing (see Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 380.40 at 271 [2005 ed]), that fundamental right may be waived just as many other fundamental rights may be similarly waived (see e.g. People v Mox, 20 NY3d 936, 938 [2012] [defendant may waive right to a jury trial by pleading guilty]; People v Henriquez, 3 NY3d 210, 216 [2004] [defendant may voluntarily waive the right to the effective assistance of counsel]; People v Smith, 92 NY2d 516, 520 [1998] [defendant may waive fundamental right to counsel]; People v Epps, 37 NY2d 343 [1975], cert denied 423 US 999 [1975] [defendant in custody may waive his right to be present at trial]). A defendant’s right to be present at sentencing does not fall within the class of those fundamental rights that may not be waived, particularly where a defendant is receiving the sentence to which he knowingly and voluntarily agreed in a plea bargain.

CPL 380.40 exists for the protection of the defendant, and if a defendant knowingly, voluntarily and intelligently informs the court that he desires to waive this fundamental right, he is entitled to do so. This defendant specifically sought to waive this right, did so on the record in the presence of his attorney, was apprised by the court that he had an absolute right to personally appear, and expressly agreed to have his attorney appear at sentencing on his behalf. Moreover, the court assured defendant that it would not sentence him in absentia if circumstances indicated that the plea agreement could not be honored. Under these circumstances, defendant, having expressly waived his right to personally appear in the presence of his counsel, cannot be heard to complain that County Court erred in granting his specific request. Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge DiFioke and Judges Rivera, Abdus-Salaam, Stein and Garcia concur; Judge Fahey taking no part.

Order affirmed.


author: Stein, J.

text:
    [54 NE3d 74, 34 NYS3d 402]
    The People of the State of New York, by Eric T. Schneiderman, Attorney General of the State of New York, Respondent, v Maurice R. Greenberg et al., Appellants.
    Argued May 3, 2016;
    decided June 2, 2016

      Boies, Schiller & Flexner LLP, Armonk (David Boies of counsel), Boies, Schiller & Flexner LLP, New York City (Nicholas A. Gravante, Jr., Robert J. Dwyer and Amy L. Neuhardt of counsel), Skadden, Arps, Slate, Meagher & Flom LLP, New York City (John L. Gardiner of counsel), and Charles Fried, Cambridge, Massachusetts, of the Massachusetts bar, admitted pro hac vice, for Maurice R. Greenberg, appellant, and Kaye Scholer LLP, New York City (Vincent A. Sama and Catherine B. Schumacher of counsel), and Andrew M. Lawler, P.C., New York City (Andrew M. Lawler of counsel), for Howard I. Smith, appellant.

      Eric T. Schneiderman, Attorney General, New York City (Barbara D. Underwood, Steven C. Wu and Claude S. Platton of counsel), for respondent.

      Susan Ann Silverstein, AARP Foundation Litigation, Washington, D.C., for AARP, amicus curiae.

      Anne-Valerie Mirko, General Counsel, North American Securities Administrators Association, Inc., Washington, D.C., for North American Securities Administrators Association, Inc., amicus curiae.

      Mayer Brown LLP, Washington, D.C. {Andrew J. Pincus and Paul W. Hughes of counsel), for Chamber of Commerce of the United States of America and another, amici curiae.
   OPINION OF THE COURT

Stein, J.

This appeal is the second to have come before us challenging the denial of motions for summary judgment dismissing the complaint in this action, which was commenced in 2005 by the Attorney General under the Martin Act (General Business Law art 23-A) and Executive Law § 63 (12) against defendants, two former officers of American International Group, Inc. As in the prior appeal, defendants challenge the availability of certain equitable relief. We again hold that the Attorney General’s claims against defendants withstand summary judgment and, therefore, should proceed to trial.

The underlying facts of this matter are more fully set forth in our prior decision (21 NY3d 439 [2013]), in which we rejected defendants’ argument “that no basis exist [ed] for granting equitable relief . . . [because] all such relief that could possibly be awarded has already been obtained in litigation brought by the Securities and Exchange Commission (SEC), which [defendants] settled in 2009” {id. at 447). In addition, defendants had requested in that appeal that this Court determine, as a matter of law, that equitable relief was unavailable in this case under the Martin Act. Specifically, defendants argued that the Attorney General has no “ability to ask for disgorgement” because there was no “illegal gain[ ],” and the Attorney General could not demonstrate “some danger of continuing violation,” the showing defendants asserted was necessary to obtain injunctive relief under the act. In the face of these arguments, we were unable to “say as a matter of law that no equitable relief may be awarded” (21 NY3d at 448), and we concluded that it was necessary for the lower courts to determine, in the first instance, whether the injunction sought by the Attorney General — a lifetime ban on defendants’ participation in the securities industry and service as an officer or director of a public company — “would be a justifiable exercise of a court’s discretion” (id. at 448). We similarly concluded that the “availability” of any other equitable relief sought by the Attorney General — i.e., disgorgement — must initially be decided by the lower courts (id.).

One month after this Court’s prior decision was issued, defendants moved again for summary judgment dismissing the complaint against them. Defendants primarily argued that: the equitable relief sought was not warranted on the facts of this case; disgorgement is not an authorized remedy under the Martin Act or Executive Law § 63 (12); and disgorgement is preempted by federal law. Supreme Court rejected those arguments and denied defendants’ motion (43 Misc 3d 1229[A], 2014 NY Slip Op 50840[U] [2014]), and the Appellate Division affirmed (127 AD3d 529, 529-530 [1st Dept 2015]). The Appellate Division thereafter granted defendants leave to appeal and certified the following question to this Court: “Was the order of the Supreme Court, as affirmed by this Court, properly made?”

Initially, we note that defendants may not relitigate the issues that were resolved in our prior decision (see People v Rodriguez, 25 NY3d 238, 243 [2015]; see generally People v Evans, 94 NY2d 499, 502-503 [2000]), or raise issues on appeal that were not preserved on the record for our review. Thus, the majority of their arguments regarding the availability of injunctive relief are not properly before us.

Turning to the first of defendants’ arguments that are not beyond our review, we conclude that the Attorney General may obtain permanent injunctive relief under the Martin Act and Executive Law § 63 (12) upon a showing of a reasonable likelihood of a continuing violation based upon the totality of the circumstances (s0ee People v Lexington Sixty-First Assoc., 38 NY2d 588, 598 [1976]; Securities & Exch. Commn. v Management Dynamics, Inc., 515 F2d 801, 807 [2d Cir 1975]). “This is not a ‘run of the mill’ action for an injunction, but rather one authorized by remedial legislation, brought by the Attorney-General on behalf of the People of the State and for the purposes of preventing fraud and defeating exploitation” (Lexington Sixty-First, 38 NY2d at 598). “ ‘[T]he standards of the public interest not the requirements of private litigation measure the propriety and need for injunctive relief ” (Management Dynamics, 515 F2d at 808, quoting Hecht Co. v Bowles, 321 US 321, 331 [1944]). Therefore, we reject defendants’ argument that the Attorney General must show irreparable harm in order to obtain a permanent injunction.

Defendants’ reliance upon State of New York v Fine (72 NY2d 967, 969 [1988]) — in which we held that the Attorney General must demonstrate irreparable harm to obtain a preliminary injunction under the Martin Act — is misplaced. Our holding in that case was grounded upon the interplay of General Business Law § 357, which incorporates the CPLR, and the relevant provision of the CPLR itself, which require a showing of irreparable injury before a preliminary injunction may be panted (see CPLR art 63; Fine, 72 NY2d at 969). That holding is of no moment here, inasmuch as the CPLR has no similar provisions governing permanent injunctive relief and, in any event, Executive Law § 63 (12) does not incorporate the CPLR. Thus, no showing of irreparable harm was necessary and we agree with the courts below that, under the circumstances of this case, questions of fact exist regarding the propriety of the permanent injunctive relief sought, which preclude summary judgment.

We further conclude that disgorgement is an available remedy under the Martin Act and the Executive Law. The Martin Act contains a broad, residual relief clause, providing courts with the authority, in any action brought under the act, to “grant such other and further relief as may be proper” (General Business Law § 353-a). Indeed, this Court has previously recognized that the courts are not limited to the remedies specified under either of these statutes (Lexington Sixty-First, 38 NY2d at 593-594, 598-599). In our view, disgorgement “merely requires the return of wrongfully obtained profits [and] does not result in any actual economic penalty” (Official Comm. of Unsecured Creditors of WorldCom, Inc. v Securities & Exch. Commn., 467 F3d 73, 81 [2d Cir 2006]). As we have previously stated, in an appropriate case, disgorgement may be an available “equitable remedy distinct from restitution” under this State’s anti-fraud legislation (Matter of People v Applied Card Sys., Inc., 11 NY3d 105, 125 [2008], cert denied sub nom. Cross Country Bank, Inc. v New York, 555 US 1136 [2009]; see People v Ernst & Young LLP, 114 AD3d 569, 569-570 [1st Dept 2014]). Nor is there any merit to defendants’ arguments that such relief is barred under the Supremacy Clause or that it was waived by the Attorney General. Moreover, as with the Attorney General’s claim for an injunction, issues of fact exist which prevent us from concluding, as a matter of law, that disgorgement is unwarranted.

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

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam and Fahey concur; Judge Garcia taking no part.

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


author: Chief Judge DiFiore. Fahey, J.

text:
    [54 NE3d 1149, 35 NYS3d 278]
    In the Matter of Susan M. Kent, as President of the New York State Public Employees Federation, AFL-CIO, Respondent, v Jerome Lefkowitz, as Chairman of the New York State Public Employment Relations Board, et al., Appellants.
    Argued March 30, 2016;
    decided May 10, 2016

      David P. Quinn, Albany, for Jerome Lefkowitz and another, appellants.

      Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan, Barbara D. Underwood and Andrea Oser of counsel), for New York State Governor’s Office of Employee Relations and another, appellants.

      Lisa M. King, Albany, for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

In January 1996, respondent New York State Racing and Wagering Board reduced per diem wages for its seasonal employees by 25%. In response, the New York State Public Employees Federation, AFL-CIO (PEF) filed an improper practice charge, alleging that the reduction in wages violated Civil Service Law § 209-a (1) (d). In this CPLR article 78 proceeding, the issue is whether the decision of respondent Public Employment Relations Board (PERB), dismissing that improper practice charge, was affected by an error of law or was arbitrary and capricious or an abuse of discretion. We conclude that it was not.

I

PEF is the certified collective bargaining representative for the Professional, Scientific and Technical Services Unit of New York State employees. That unit includes seasonal track personnel employed by the Racing Board, an entity within the executive branch of New York State government. Seasonal track employees are exempt from civil service classification under Civil Service Law § 41 and are appointed each year by the chair of the Racing Board to work during a specific season from opening date until closing date. The compensation of such employees is set each year by the Racing Board chair, subject to the approval of the Director of the Budget (State Finance Law §§ 44, 49).

In October 1995, PEF and the executive branch of the State— through its bargaining agent respondent New York State Governor’s Office of Employee Relations (GOER) — entered into a collective bargaining agreement (CBA) that was operative from 1995 to 1999. Appendix II of the CBA contained a “Memorandum of Interpretation,” or side letter agreement, which addressed terms and conditions of the employment of seasonal employees. Section 1 of the side letter agreement incorporated by reference more than 50 articles from the CBA. Section 2 of the side letter agreement, labeled “Compensation,” covered — in specific detail — lump-sum payments (in paragraph [A]) and salary increases for eligible employees (in paragraph [B]) for specific fiscal years covered by the CBA. Paragraph (C) addressed the effect on a seasonal employee’s rate of compensation “[i]f during the term of th[e] Agreement the rate of compensation of any employee in a seasonal position [wa]s increased at the discretion of the Director of the Budget for the purpose of making such rate equal to the [federal minimum wage level.” Paragraph (D) of the side letter agreement expressly made paragraphs (A) through (C) applicable to seasonal employees paid on a per diem basis. The side letter agreement also covered holiday compensation and workers’ compensation.

In January 1996, approximately two months after the side letter agreement was executed, the Racing Board’s chair announced a 25% reduction in the per diem pay of seasonal track employees, effective with the January 1996 appointments. In response, PEF filed an improper practice charge with PERB, alleging that this reduction violated the Racing Board’s duty to negotiate in good faith under Civil Service Law § 209-a (1) (d). The Racing Board answered, raising the affirmative defense of waiver. After administrative hearings, PERB’s Assistant Director rejected the waiver defense and found a violation of Civil Service Law § 209-a (1) (d). The Racing Board filed exceptions to that decision. PEF also filed exceptions, which focused on the relief awarded by the Assistant Director.

PERB dismissed the improper practice charge. It found that, while the Racing Board had an obligation to negotiate the wages of seasonal employees, the side letter agreement was “a negotiated limitation upon the State Budget Director’s discretion with respect to unilateral adjustments in the rates of compensation for seasonal positions in the unit” and, therefore, the duty to negotiate was satisfied (45 PERB ¶ 3041 [2012]).

Petitioner, then president of PEF, commenced this CPLR article 78 proceeding, arguing that PERB’s determination was “arbitrary, capricious, irrational and contrary to law.” Supreme Court dismissed the petition, finding that “PERB’s experience with the subtleties of how parties negotiate a collective bargaining agreement ma[d]e it uniquely qualified to frame the issue and having done so in a reasoned manner, the court may not interfere” (46 PERB ¶ 7006 [2013]).

The Appellate Division reversed, with two Justices dissenting (119 AD3d 1208). The majority held that “PERB’s determination . . . was arbitrary and capricious” because it “d [id] not believe” that the side letter agreement demonstrated that the Racing Board negotiated the unilateral 25% reduction in wages (id. at 1212). The dissent opined that “when PERB’s interpretation of the side letter agreement is afforded the deference it is due, its determination that the [Racing] Board met its burden of establishing that it satisfied its duty to negotiate with [PEF] is rational and not arbitrary and capricious” (id. at 1214 [citations omitted]).

Respondents — PERB (and its Chairman), GOER, and the Racing Board — appeal as of right pursuant to CPLR 5601 (a).

II.

Pursuant to the State Finance Law, the chair of the Racing Board has the discretion to set the compensation of seasonal track employees, including per diem compensation, “subject to the approval of the director of the budget” (State Finance Law § 44 [1]; see also id. § 49). Nevertheless, the Taylor Law— namely, Civil Service Law § 209-a (1) (d) — makes it an improper practice for a public employer, in this case the Racing Board, “to refuse to negotiate in good faith with the duly recognized or certified representatives of its public employees” — in this case, PEF. The parties do not dispute that per diem compensation rates must be negotiated. Instead, the parties dispute whether this duty to negotiate was satisfied by the negotiation of the side letter agreement.

“Duty satisfaction occurs when a specific subject has been negotiated to fruition and may be established by contractual terms that either expressly or implicitly demonstrate that the parties had reached accord on that specific subject” (Matter of Nassau County Sheriffs Corr. Officers Benevolent Assn., Inc. [County of Nassau], 48 PERB ¶ 3014 [2015]). To succeed on a duty satisfaction defense, “a respondent has the burden of proving that the parties have negotiated terms in an agreement that are reasonably clear on the specific subject at issue” (Matter of Nassau County Sheriff's Corr. Officers Benevolent Assn., Inc. [County of Nassau], 46 PERB ¶ 3002 [2013]). That determination requires PERB “to interpret the meaning of the agreement through the application of standard principles of contract interpretation” (Matter of Shelter Is. Faculty Assn., NYSUT, AFT, NEA, AFL-CIO [Shelter Is. Union Free Sch. Dist.], 45 PERB ¶ 3032 [2012]).

Our scope of review in this context is limited to whether PERB’s decision “was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3]; see also Matter of Town of Islip v New York State Pub. Empl. Relations Bd., 23 NY3d 482, 492 [2014] [internal quotation marks omitted]). Moreover, as we have recognized, “PERB is accorded deference in matters falling within its area of expertise” (.Matter of Town of Islip, 23 NY3d at 492). This includes “the resolution of improper practice charges” (Matter of Poughkeepsie Professional Firefighters’ Assn., Local 596, IAFF, AFL-CIO-CLC v New York State Pub. Empl. Relations Bd., 6 NY3d 514, 522 [2006]).

Respondents argue that the side letter agreement made it “reasonably clear” that the parties satisfied their bargaining obligations concerning limits to be placed on the Budget Director’s discretion to set wages. Specifically, respondents argue that paragraph (C) of the side letter agreement shows that, outside the specific negotiated wage increases, the parties understood that the Budget Director retained the statutory discretion to set wages. Respondents further argue that the Appellate Division erred by declining to defer to, and substituting its own judgment for, PERB’s construction of the parties’ side letter agreement.

Petitioner argues that the “specific subject” of the improper practice charge is the 25% wage decrease and that it is not reasonably clear from the side letter agreement that PEF and the Racing Board negotiated concerning the Budget Director’s ability to unilaterally reduce wages. According to petitioner, PERB’s determination was in error and the Appellate Division’s order holding it arbitrary and capricious should be affirmed.

III.

By statute, the per diem compensation for seasonal employees is set at the discretion of the Racing Board chair, subject to the approval of the Budget Director (State Finance Law §§ 44, 49). That statutorily authorized discretion can be limited through the collective bargaining process. Here, PERB found that the side letter agreement, which incorporated more than 50 provisions of the CBA, comprehensively addressed the parties’ agreement with respect to limits on that discretion. PERB’s decision was rational and supported by the language of the side letter agreement.

The side letter agreement sets out the specific circumstances that limit the Budget Director’s discretion to set wages. Paragraphs (A), (B), and (C) of section 2 of the side letter agreement each address specific areas of compensation. Section 2 (A) details lump-sum payments to be paid to eligible employees in fiscal years 1996-1997 and 1997-1998. Section 2 (B) limits the Budget Director’s discretion to set the wage rates for fiscal years 1997-1998 and 1998-1999 by mandating a 3.5% increase for eligible employees. Section 2 (C) provides that even if the Budget Director “at [his/her] discretion” increases wages to comply with federal minimum wage requirements, the increases outlined in sections 2 (A) and 2 (B) will still be implemented to the extent that they raised the employees’ wages above the federal minimum wage.

The side letter agreement was comprehensive in addressing all conditions of employment for seasonal employees for 1995 to 1999. It included specific pay increases for specific years, but not for the fiscal year in which the 25% reduction took effect. The side letter agreement did not rule out pay reductions and did not impose any conditions precedent to pay reductions. Thus, PERB’s conclusion that it was “reasonably clear” that both sides intended the side letter agreement “to act as a negotiated limitation upon the State Budget Director’s discretion” as to compensation for seasonal employees was not arbitrary and capricious (45 PERB ¶ 3401). Contrary to the dissent’s characterization, the decision is supported not just by the quantity of items contained in the side letter agreement, but by specific items expressly limiting the discretion otherwise delegated to the Racing Board chair and Budget Director by statute. PERB’s decision should be accorded deference as a decision within its area of expertise. Read as a whole, the language of the side letter agreement “implicitly demonstrate [s] that the parties had reached accord” with respect to any limitations on the discretionary authority of the Budget Director to change the per diem compensation of seasonal employees.

While the respondents highlight the explicit mention of the “discretion of the Director of the Budget” in section 2, paragraph (C), of the side letter agreement, it is not this language alone that supports the conclusion reached by PERB. Each of the compensation sections of the side letter agreement demonstrates negotiation with respect to the statutorily authorized discretion.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court reinstated.

Fahey, J.

(dissenting). I respectfully dissent and would affirm the Appellate Division order. The side letter agreement is the product of a negotiation between the New York State Public Employees Federation, AFL-CIO (PEF) and respondent New York State Governor’s Office of Employee Relations. Both of those sophisticated entities are well schooled in the art of negotiation. To say that PEF implicitly agreed to a 25% wage reduction strains credulity.

The majority essentially concludes that because the side letter incorporates more than 50 articles from the 1995-1999 collective bargaining agreement (CBA) between PEF and the State regarding employees in the Professional, Scientific and Technical Services Unit, the compensation reduction now in question necessarily was negotiated by PEF and the State— even though it is undisputed that neither those articles nor the balance of the side letter considers that issue. In doing so, the majority supposes that because many parts of the CBA were incorporated into the side letter, and because the side letter otherwise considers salary increases, the compensation reduction now at issue must have been contemplated by that agreement.

Although respondent New York State Public Employment Relations Board (PERB) is entitled to “deference in matters falling within its area of expertise” (Matter of Town of Islip v New York State Pub. Empl. Relations Bd., 23 NY3d 482, 492 [2014] [internal quotation marks omitted]), and although this Court generally is reluctant to disturb a determination of PERB (see Matter of Poughkeepsie Professional Firefighters’ Assn., Local 596, IAFF, AFL-CIO-CLC v New York State Pub. Empl. Relations Bd., 6 NY3d 514, 522 [2006]), I do not presume that the adoption of many aspects of the CBA and the side letter’s consideration of pay increases means that the subject pay decrease was negotiated here.

Indeed, the deference afforded PERB, while “great” (.Matter of Town of Southampton v New York State Pub. Empl. Relations Bd., 2 NY3d 513, 520 [2004]), is not unbounded. Respondent New York State Racing and Wagering Board, the employer of the affected workers, relies on an affirmative defense of duty satisfaction, that is, a defense for which it bears the burden of proof (see Siegel, NY Prac § 223 at 381 [5th ed 2011]). I cannot conclude that such affirmative defense has been satisfied where, as here, the parties to the negotiation carefully noted the items that had been negotiated and intentionally omitted therefrom the subject matter that is now in dispute.

Said another way, in assessing the side letter we should not confuse quantity with specificity so as to conclude that the absent item is present. Under these circumstances, I cannot agree that an item absent from an agreement containing a comprehensive explanation of negotiated items prepared by sophisticated parties somehow is encompassed by that compact. For those reasons, I agree with the Appellate Division that PERB’s determination that the side letter embraced the pay reduction in question is arbitrary and capricious, and I respectfully dissent.

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

Order reversed, without costs, and judgment of Supreme Court, Albany County, reinstated.

      . Effective February 1, 2013, the Racing Board merged into the New York State Gaming Commission, a newly created entity.

      . At the time the Racing Board’s answer was filed, PERB did not distinguish between the defenses of duty satisfaction and waiver (Matter of Kent v Lefkowitz, 119 AD3d 1208, 1210 [3d Dept 2014]). Accordingly, as the Appellate Division majority and dissent agreed, the Racing Board “properly raised the duty satisfaction defense” (id. at 1210, 1212).

      . Notably, on at least one occasion prior to 1996, the wages of seasonal employees were reduced at the discretion of the Racing Board chair.

       This case is governed by the Taylor Law (Civil Service Law § 200 et seq.), which, in matters within its purview, imposes a “strong and sweeping” obligation (Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 667 [1990] [internal quotation marks omitted]) to “collective[ly] bargain! ] over all ‘terms and conditions of employment’” (Matter of Patrolmen’s Benevolent Assn, of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563, 572 [2006] [emphasis added], quoting Civil Service Law § 204 [2]; see Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 19 NY3d 876, 879 [2012]).


text:
    [54 NE3d 1145, 35 NYS3d 274]
    The People of the State of New York, Appellant, v Wayne Henderson, Respondent.
    Argued March 24, 2016;
    decided May 10, 2016

      Richard A. Brown, District Attorney, Kew Gardens (Christopher J. Blira-Koessler, Robert J. Masters and John M. Cas-tellano of counsel), for appellant.

      Lynn W.L. Fahey, Appellate Advocates, New York City (Leila Hull of counsel), for respondent.
   OPINION OF THE COURT

Pigott, J.

Defendant was convicted of attempted murder and two counts of assault in the first degree for repeatedly stabbing a 12-year-old victim. Defendant, who was 15 years old at the time, had known the victim for about a year and occasionally spent time with him in the company of defendant’s 14-year-old girlfriend. One evening, defendant, the victim and defendant’s girlfriend were smoking marijuana at a park when either the victim or defendant pulled a knife (the stories vary) and a struggle ensued. In the course of the struggle, defendant stabbed the victim 20 to 25 times, and either defendant or his girlfriend cut the victim’s throat and carved an “X” into his cheek.

The victim survived and testified against defendant at trial. He described the stabbing in great detail, explaining that defendant attacked him with a knife after defendant’s girlfriend called the victim a “snitch” for telling his mother that the three had been using marijuana. Defendant raised a defense of justification and asserted that he lacked the requisite intent to kill or cause injury to the victim. Specifically, defendant maintained that he initially struggled with the victim in self-defense after the victim drew the knife, but that he eventually experienced a type of psychotic episode that caused him to black out. He claimed no memory of subsequent events.

Defense counsel called an expert in child and adolescent psychiatry to offer an opinion on defendant’s mental condition. After interviewing defendant and his mother, administering a psychiatric evaluation to defendant, reading the testimony of the lead detective in the case and reviewing defendant’s medical records, previous psychiatric evaluations and educational reports, the expert concluded that defendant suffered from schizophreniform disorder — “a very severe psychiatric disorder” that causes a person to deteriorate mentally but does not require hospitalization. He observed that defendant had a history of behavioral problems and violent outbursts, likely related to the fact that his father and uncle were both stabbed to death when defendant was quite young, and that defendant had previously been committed to a residential psychiatric facility. According to the expert, defendant’s disorder, coupled with his use of drugs and alcohol, compromised defendant’s mental state on the night of the crime and prevented him from forming the requisite intent. He testified that the large number of stab wounds defendant inflicted and the random and violent nature of the attack were consistent with someone who had experienced a psychotic episode brought on by schizophreniform disorder and with defendant’s testimony that he “blacked out.”

On cross-examination, the expert acknowledged that he had not seen photographs of the victim’s stab wounds or his emergency room records, but that he had reviewed the lead investigator’s statements about the wounds and that defense counsel had informed him they “were all over the place.” He also stated that he knew the victim had been stabbed multiple times in the interior and exterior jugular veins, chest, back and legs. When asked by the prosecutor whether he was aware that the People’s theory of motive was that defendant stabbed the victim in retaliation for “snitching,” the expert indicated that he was not and that such information “could and . . . could not necessarily change [his] opinion.”

In summation, defense counsel argued that the photographs of the victim’s wounds were irrevelant to the expert’s opinion of defendant’s mental state and there was no need to share them with him; she “hired him as a psychiatrist to evaluate [defendant], not to evaluate photos of injuries of the complainant.” The prosecutor argued in summation that the expert’s knowledge was incomplete and his diagnosis unsupportable, since he “didn’t bother to look at the photos or was not given them.” The jury convicted defendant of all counts.

Defendant challenged the judgment of conviction on direct appeal, arguing, among other things, that he received ineffective assistance of counsel based on his attorney’s failure to provide the expert with photographs or hospital records of the victim’s stab wounds and to inform the expert that the victim had “snitched” on defendant. The Appellate Division agreed and reversed, concluding that counsel’s “so-called strategic decision to withhold information from the expert allowed the prosecutor to demonstrate to the jury that the expert was ill-informed” and “that the failure to disclose was intentional, and possibly misleading” (118 AD3d 1020, 1023 [2d Dept 2014]). Even if counsel had made a strategic decision to withhold the information, the Court held, “it was not consistent with the actions of a reasonably competent attorney” and that counsel would have been better off not calling an expert at all (id.). A Judge of this Court granted the People leave to appeal, and we now reverse.

The record as a whole reveals that defendant received meaningful representation (see People v Baldi, 54 NY2d 137, 147 [1981]). Defense counsel mounted a cogent, albeit unsuccessful, multipronged defense that highlighted defendant’s psychological condition, drug and alcohol abuse and deeply troubled past. Counsel retained a reputable expert to evaluate defendant and provided that expert with a substantial amount of information, including defendant’s medical and psychiatric records, educational reports and the testimony of the lead investigator in the case. Defense counsel’s preparation of its expert was, in every respect, far superior to the witness preparation we deemed constitutionally deficient in People v Bennett (29 NY2d 462 [1972]) and People v Oliveras (21 NY3d 339 [2013]), in which counsel either failed to familiarize himself with the relevant facts and law regarding an insanity defense and called two experts who “testified that the [defendant] was sane” (Bennett, 29 NY2d at 466), or else “chose to forgo any investigation of the critical documents concerning defendant’s mental condition, and instead, sought to present [an insanity] defense through the testimony of defendant’s mother, an obviously biased witness” (Oliveras, 21 NY3d at 347).

Moreover, defendant has failed to “demonstrate the absence of strategic or other legitimate explanations” for counsel’s alleged shortcomings (see People v Benevento, 91 NY2d 708, 712 [1998]). As defense counsel indicated in summation, she believed the pictures of the victim’s stab wounds were potentially inflammatory, unnecessary for the expert’s evaluation of defendant’s mental state and no more useful than the extensive information he had already been provided. She could have reached the same conclusion about the prosecution’s theory of “snitching” — which counsel vigorously disputed.

Whatever the wisdom of counsel’s strategy, we cannot say that it was inconsistent with the actions of a reasonably competent attorney. There is no evidence on this record of what information forensic experts ordinarily require in order to arrive at an expert conclusion, or what information the expert requested in this case. Nor is there any evidence of what information an attorney ordinarily would or should provide to such an expert, independently of the expert’s request. Therefore, it is not clear that prevailing professional norms would have required counsel to provide the expert with photographs and hospital records of the victim’s stab wounds or inform him of the prosecution’s theory of the case (cf People v Rivera, 71 NY2d 705, 709 [1988]).

As we recently held in People v Pavone, defense counsel is not ineffective for failing to provide an expert witness with every piece of information that conceivably aids the expert in reaching his or her conclusion, even where, as here, the expert admits that such information would have been “useful and important” and the prosecutor highlights that admission (26 NY3d 629, 636, 647 [2015]). The decision whether to provide the expert with the omitted information was a decision that counsel was entitled to make and that we will not second-guess with the clarity of hindsight (see Benevento, 91 NY2d at 712; People v Satterfield, 66 NY2d 796, 799-800 [1985] [“It is not for this court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation”]).

Finally, we reject defendant’s contention that, by failing to provide the expert with photographs of the victim or the prosecution’s theory of retaliation, counsel “dictate [d] the formation of the expert’s opinion” in violation of the ABA standards for ethical conduct (ABA Standards for Criminal Justice, Defense Function, standard 4-4.4 [a] [3d ed 1993]). Counsel provided the expert with an accurate description of the victim’s wounds and gave him extensive information that both helped and hurt defendant’s view of the case, including the opinions of two other experts whose conclusions contradicted his own. This is not a case in which defense counsel “wholly fail[ed] to provide an expert. . . any basis upon which to develop an opinion, or provide [d] an expert with incorrect information” (Pavone, 26 NY3d at 647).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts and issues raised but not determined on the appeal to that Court.

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

Order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on the appeal to that Court.

      . Before trial, defendant’s girlfriend pleaded guilty to one count of attempted murder in the second degree and two counts of assault in the second degree.

      . We disagree with the Appellate Division’s suggestion that it would have been a better strategy not to call an expert at all than to have the expert appear ill-informed. For one thing, courts should not be in the business of deciding, in hindsight, what would have been the best or a better trial strategy in any given case. For another, having an expert in this case was especially helpful to the defense, whose theory of diminished capacity hinged on defendant’s testimony that he blacked out during the crime, and the expert was able to explain how that occurred.


text:
    [54 NE3d 1157, 35 NYS3d 286]
    The People of the State of New York, Respondent, v Gary Wright, Appellant.
    Argued May 4, 2016;
    decided June 9, 2016

      Michael Katzer, Slingerlands, for appellant.

      P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

The issue presented by this appeal is whether it was an abuse of discretion to deny defendant’s CPL 440.10 motion to vacate his judgment of conviction without a hearing. We hold that the courts below were within their discretion to summarily deny the motion because defendant’s papers failed to substantiate the allegations that there was an actual conflict of interest or that any potential conflict operated on the defense.

In September 2008, defendant was charged with attempted rape and was arraigned in local court. At that time, he was represented by the first of three attorneys to represent him during the criminal action. The Albany County District Attorney’s Office represented the People. Defendant retained his second attorney, James Long, in February 2009. Long represented defendant throughout a significant portion of the pre- and postindictment proceedings, including plea negotiations and a Huntley hearing. In September 2009, defendant fired Long and retained a third attorney, who represented him for the remainder of the prosecution, including the November 2009 trial where defendant was convicted of attempted rape in the first degree and two counts of sexual abuse in the first degree, as charged in the indictment.

Defendant subsequently made successive CPL 440.10 motions to vacate the judgment of conviction based on newly discovered evidence relating to the credibility of certain witnesses. County Court denied both motions without a hearing. The Appellate Division affirmed the judgment of conviction and the denial of both CPL article 440 motions in a single order (88 AD3d 1154 [3d Dept 2011]). A Judge of this Court denied defendant’s application for leave to appeal (18 NY3d 863 [2011]).

In April 2014, defendant made the instant motion to vacate his judgment of conviction pursuant to CPL 440.10 based on an alleged conflict of interest, asserting that his attorney, Long, had simultaneously represented the Albany County District Attorney, P. David Soares. Defendant maintained that evidence of the alleged conflict was newly discovered, that his conviction was obtained in violation of his right to counsel and that it was based on misrepresentation or fraud on the part of the prosecutor. He further asserted that Long had provided ineffective assistance of counsel. Defendant also sought an order disqualifying Soares from taking any further action in his case, as well as the appointment of a Special District Attorney.

More specifically, defendant alleged that Long had represented Soares in October 2008 — four months before Long was retained by defendant — by writing a letter in connection with Soares’ November 2008 reelection campaign. In support, defendant attached an October 18, 2008 article from the Albany Times Union, which stated that Long, who represented the campaign, had sent a letter to the Board of Elections asking to examine the machine ballots prior to the general election. Defendant next alleged that, in 2011-2012, Long was counsel of record for Soares in a disciplinary proceeding and in Soares’ divorce action. Based on these allegations, defendant maintained that the attorney-client relationship between Soares and Long was continuous and had lasted throughout the duration of defendant’s criminal action. Defendant also pointed out that, in other pending criminal actions in the period between 2012 and 2013 where Long was the defense counsel, Soares, through his own affirmation, or the affirmation of his Chief Assistant, admitted the fact of simultaneous representation and sought the appointment of a special district attorney pursuant to County Law § 701 based on the existence of a conflict of interest.

In response, the People submitted an affirmation from an Assistant District Attorney who maintained that there had been no simultaneous representation, and thus no actual conflict, and that there was no potential conflict that had operated on the defense. The People, in the affirmation, denied “any and all allegations of fact made by defendant in his moving papers that [they had] not specifically conceded.” The responding papers did not include an affidavit from Soares himself.

County Court denied the motion without a hearing, finding that defendant failed to establish an actual conflict, that any conflict based on Long’s subsequent 2011 representation of Soares did not retroactively infect Long’s 2009 representation of defendant, and that defendant did not demonstrate actual prejudice. The court also concluded that the alleged conflict did not amount to newly discovered evidence, as it could have been discovered with due diligence at the time of trial. The Appellate Division affirmed, determining that there was no record support for the assertion that there was an actual conflict and that defendant failed to show that any potential conflict had operated on the defense (129 AD3d 1217, 1218-1219 [3d Dept 2015]). A Judge of this Court granted defendant leave to appeal (26 NY3d 1044 [2015]), and we now affirm.

CPL 440.30 requires that, where the motion to vacate a judgment of conviction “is based upon the existence or occurrence of facts,” sworn allegations thereof must be included in the motion papers (see CPL 440.30 [1] [a]). The sworn allegations can be based on personal knowledge or on information and belief, but in support of the latter, “the affiant must state the sources of such information and the grounds of such belief” (CPL 440.30 [1] [a]). The People “may” file an answer “denying or admitting any or all of the allegations” (see CPL 440.30 [1] [a]). The statute permits a court to deny the motion without a hearing in certain circumstances, including if it “is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts” (CPL 440.30 [4] [b]). We review the summary denial of a CPL article 440 motion under an abuse of discretion standard (see People v Jones, 24 NY3d 623, 630 [2014]).

Defendant contends that his representation by Long was subject to an actual and inherent conflict of interest and that his conviction must therefore be vacated. “A lawyer simultaneously representing two clients whose interests actually conflict cannot give either client undivided loyalty” (People v Ortiz, 76 NY2d 652, 656 [1990]). We have distinguished between actual and potential conflicts of interest, observing that reversal of a defendant’s conviction would be required where there is even a significant possibility of an actual conflict (see People v Solomon, 20 NY3d 91, 95-96 [2012]). “ ‘[A] defendant is denied the right to effective assistance of counsel guaranteed by the Sixth Amendment when, absent inquiry by the court and the informed consent of defendant, defense counsel represents interests which are actually in conflict with those of defendant’ ” (Solomon, 20 NY3d at 97, quoting People v McDonald, 68 NY2d 1, 8 [1986]).

By contrast, where there is a potential conflict of interest that has not been waived, the defendant must show that the conflict operated on the defense (see Solomon, 20 NY3d at 97-98). A potential conflict may exist where the conflicting representations are successive, rather than simultaneous. “Even though a representation has ended, a lawyer has continuing professional obligations to a former client, including the duty to maintain that client’s confidences and secrets” (Ortiz, 76 NY2d at 656).

Here, defendant’s actual conflict claim consists of unsubstantiated and conclusory allegations of simultaneous representation. He relies on a letter Long wrote on behalf of Soares’ campaign four months before Long first represented defendant, and Long’s representation of Soares on various personal matters years after Long’s representation of defendant had ceased. Beyond mere supposition, there is no factual support for the conclusion that Long’s representation of Soares’ reelection campaign in 2008 continued beyond its apparent scope, or that it overlapped with his 2009 representation of defendant. Under CPL 440.30 (4) (b), based on this failure to provide sworn allegations substantiating or tending to substantiate the essential facts, County Court was within its province to deny the motion without a hearing (compare CPL 710.60 [3] [b]; People v Mendoza, 82 NY2d 415 [1993]).

This is not a case where the People offered or conceded any facts to substantiate the defendant’s legal argument, as the Assistant District Attorney, who acts on behalf of the District Attorney (see County Law § 702), in his affirmation specifically denied that there was any concurrent representation (compare People v Gruden, 42 NY2d 214 [1977]). There is also no merit to the claim that the trial court lacked the discretion to summarily deny the 440 motion based on the People’s failure to submit an affirmation from Soares, himself, on a theory that this omission amounts to a presumptive admission of the alleged conflict. Indeed, the statute is plain that the initial failure by a defendant to carry his or her burden of coming forward with sworn allegations substantiating the essential facts in the 440 motion does not shift the burden to the People in their responsive pleadings.

Defendant argues that evidence of the existence of the conflict would most likely be out of his reach (see People v Shinkle, 51 NY2d 417, 420-421 [1980]). This claim is without merit in these circumstances. Defendant admittedly never attempted to obtain the necessary information from his own attorney (Long). Whatever the strategy of omission, we simply do not know whether Long’s answer would have aided defendant’s claim. The failure to include an affirmation from counsel, or an explanation for the failure to do so, has been held to warrant the summary denial of a defendant’s postconviction motion (see People v Morales, 58 NY2d 1008, 1009 [1983]; People v Scott, 10 NY2d 380, 381-382 [1961]). Of course, if defendant either obtains the requisite information from Long or Long proves uncooperative, he is permitted by statute to bring a subsequent CPL article 440 motion (see People v Session, 34 NY2d 254, 256 [1974]).

To the extent defendant’s allegations are sufficient to establish a potential conflict — based on the successive representation — his papers do not attempt to demonstrate that such a conflict operated on the defense. Long’s representation had concluded two months before defendant went to trial, where he was represented by another attorney. He also conceded in his motion papers that he is unable to “pinpoint the manner in which his loyalty was betrayed and/or his confidences were compromised.”

In sum, there was no abuse of discretion in the denial of his motion without a hearing.

Defendant’s remaining contentions are without merit.

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

Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order affirmed.


author: Garcia, J.

text:
    [55 NE3d 435, 35 NYS3d 675]
    The People of the State of New York, Respondent, v Reginald Powell, Appellant.
    Argued February 17, 2016;
    decided April 5, 2016

      The Legal Aid Society of Westchester County, White Plains (Salvatore A. Gaetani and Clare J. Degnan of counsel), for appellant.

      Janet DiFiore, District Attorney, White Plains (Maria I. Wager, Laurie G. Sapakoff and Steven A. Bender of counsel), for respondent.
   OPINION OF THE COURT

Garcia, J.

In People v Primo, we rejected the notion “that evidence of third-party culpability occupies a special or exotic category of proof” requiring a heightened evidentiary standard for admission (96 NY2d 351, 356 [2001]). Instead, we clarified that third-party culpability evidence should be evaluated in accordance with ordinary evidentiary principles by balancing the proffered evidence’s probative value against its potential for undue prejudice, delay, and confusion. Defendant Reginald Powell challenges the Primo standard as constitutionally deficient in light of the Supreme Court’s subsequent ruling in Holmes v South Carolina (547 US 319 [2006]). We now confirm that the standard set forth in Primo does not infringe upon a defendant’s constitutional right to present a complete defense as set forth in the Sixth and Fourteenth Amendments. Applying that standard here, we conclude that the trial court did not abuse its discretion by precluding defendant’s ill-defined and speculative third-party culpability evidence.

Jennifer Katz was murdered on or about December 28, 2010. The police discovered Katz’s body in her bedroom closet; her hands were bound behind her back, fabric was tied around her neck, and she was wrapped in bedding. She died from a single stab wound to the neck.

Defendant’s brother, Warren Powell, was a sanitation worker and his collection route included Katz’s house. Warren and Katz had a prior relationship and cohabited in Katz’s house for five or six years. During that time, Katz purchased a $500,000 life insurance policy that named Warren as the beneficiary. The couple separated in the spring of 2010, several months before Katz’s death. After their separation, Katz and Warren remained on good terms. Warren would on occasion use the entry code for the garage door to gain access to Katz’s house.

On Warren’s recommendation, Katz hired defendant to do gardening and other work. On December 27, 2010, a witness saw defendant shoveling snow from Katz’s driveway. Katz was last seen the next day, December 28, at approximately 11:00 a.m. About 40 minutes later, an unanswered one-minute phone call to Warren was made from Katz’s phone.

On December 29, Warren and his coworker noticed that Katz had left her garbage cans at the curb from the day before and failed to leave any recyclables at the curb for collection. Warren and his coworker found this strange because Katz was meticulous about retrieving her empty garbage cans and placing recyclables out for collection.

The following evening, before police discovered the body, they stopped defendant, who was driving Katz’s car, for a routine traffic violation. Defendant fled on foot, but was apprehended after a short chase. Women’s jewelry was found in defendant’s possession. He told the police that he did not have a driver’s license, that he lacked permission to use Katz’s car, and that he was on parole.

Defendant made a number of voluntary statements to the police, including that he had discovered Katz’s body in a closet in her home and that he feared he would be blamed for her murder because he was on parole. He admitted that he fled the scene after taking some of Katz’s jewelry and her car. Prior to his arrest, defendant had attempted to sell Katz’s car for a fraction of its value. Defendant initially denied that he had sexual intercourse with Katz, but later asserted that they had been intimate on prior occasions. Although defendant admitted finding the body, he denied that he killed Katz.

The People presented forensic evidence that defendant’s DNA was present on several pairs of men’s underwear in the hamper in Katz’s bedroom. His DNA was also found in Katz’s vagina and on her underwear, as well as on some bedding. Defendant’s DNA also matched DNA taken from Katz’s right hand nail clipping. Phone records demonstrated that defendant’s phone was located in the area near Katz’s house at certain times on December 25, 26, 27, 28, and 30.

On December 30, after the police arrived at Katz’s house, Katz’s friend called Warren to inform him of the police activity. Warren called Katz and sent her a text message, but he did not go to the house.

Before trial, the People moved to preclude defendant from introducing evidence that Warren was the beneficiary of Katz’s $500,000 life insurance policy and from mentioning the policy in his opening statement. In response, defense counsel argued that Warren “may have a motive” and “may be a person of interest in the case.” He further argued that “other people” might also have had a motive to kill Katz.

The trial court granted the People’s motion, concluding that defendant failed to reach the threshold to admit third-party culpability evidence. Stating that defendant could not “have it both ways,” the court noted that “it is not clear that [defendant] is actually accusing [W]arren ... of doing the murder. And that is an essential element of third-party culpability.” The court left open the possibility that it could change this ruling “depending on how the evidence [was] presented throughout the trial” or if additional evidence came to light supporting the contention.

During trial, defense counsel repeatedly denied that he was attempting to prove third-party culpability, insisting that he was “not making an accusation yet,” but “simply gathering the facts” “to lay a foundation, in case I do want to make that third-party accusation.” The court reiterated to defense counsel that he must “make an offer of proof” demonstrating the “relevance and materiality” of any proffered third-party culpability evidence. The court further stated that the evidence could not be “speculative” or “misleading.”

Nevertheless, defense counsel continued his attempt to “show that there is evidence in the case someone else could have killed [Katz]. Anyone else,” while insisting he was “not trying to do third-party culpability.” Defense counsel’s ambivalent articulation of his strategy continued throughout the trial, during which he represented to the court that he was “not accusing” Warren, implied that he might accuse defendant’s girlfriend, and also proffered that “other people could have” committed the murder.

Warren testified at the trial, but the court limited defendant’s cross-examination. On direct examination, Warren testified that Katz had asked him to move out of the house about six months before the murder, but defendant was precluded from exploring the reasons for the couple’s separation. The court also limited inquiry into Warren’s failure to check on Katz after he noticed that the empty trash cans had not been retrieved and into his reaction upon hearing of police activity at Katz’s house. During cross-examination, Warren denied that he made a statement to his sister that he could never forgive defendant if it was true that defendant had engaged in a sexual relationship with Katz. The court prevented defendant from calling the sister as a witness to refute Warren’s denial.

The jury found defendant guilty of murder in the first degree and several other crimes, and defendant was sentenced to life imprisonment without parole. On defendant’s appeal, the Appellate Division affirmed (125 AD3d 1010 [2d Dept 2015]), holding that the trial court “properly precluded . . . defendant from presenting evidence of third-party culpability, since the proposed evidence was based on mere speculation” (id. at 1012). A Judge of this Court granted defendant leave to appeal (25 NY3d 1076 [2015]). We affirm.

On appeal, defendant argues that New York’s standard for admitting third-party culpability evidence fails to adequately protect a defendant’s constitutional right to present a complete defense. The main thrust of defendant’s argument at trial was that the proffered third-party culpability evidence was admissible under the Primo standard, not that the standard was unconstitutional. Nevertheless, defendant presented his constitutional claim to the trial court, and the court rejected it. As such, defendant’s constitutional argument is preserved (see CPL 470.05 [2]), but, for the reasons that follow, is without merit.

As the Holmes Court acknowledged, states “have broad latitude under the Constitution to establish rules excluding evidence from criminal trials” (Holmes, 547 US at 324 [internal quotation marks and citation omitted]). That latitude is limited, however, by the Fourteenth Amendment’s Due Process Clause and the Sixth Amendment’s Compulsory Process and Confrontation Clauses, which guarantee “criminal defendants a meaningful opportunity to present a complete defense” (id. [internal quotation marks and citation omitted]; see People v Carroll, 95 NY2d 375, 385 [2000]). A defendant’s right to present a defense “is abridged by evidence rules that infring[e] upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve” (Holmes, 547 US at 324 [internal quotation marks and citation omitted]).

In Holmes, the Supreme Court invalidated South Carolina’s rule precluding a defendant from introducing “proof of third-party guilt if the prosecution ha[d] introduced forensic evidence that, if believed, strongly support [ed] a guilty verdict” on the ground that it violated a defendant’s right to have a meaningful opportunity to present a complete defense (id. at 321). In applying that rule, “the trial judge d[id] not focus on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt”; rather the inquiry improperly focused on the strength of the prosecution’s case (id. at 329). The South Carolina standard did not rationally serve the justified end, namely “focus [ing] the trial on the central issues by excluding evidence that has only a very weak logical connection to the central issues” (id. at 330).

While acknowledging that exclusion of defendant’s evidence under such a test is prohibited by the Constitution, the Supreme Court affirmed that “well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury” (id. at 326) and that a “specific application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged” (id. at 327).

The standard articulated in Primo is fully consistent with the Holmes principles discussed above. Unlike the rule at issue in Holmes, the standard clarified by this Court in Primo focuses exclusively on the probative value of the third-party culpability evidence as weighed against its potential countervailing adverse effects.

In Primo, we rejected the “clear link” articulation of this standard that the Appellate Division apparently gleaned from our decision in Greenfield v People (85 NY 75 [1881]), noting that “ [t]he Greenfield Court. . . said nothing to suggest that it was fashioning a new or specialized test for evidence of third-party culpability” (Primo, 96 NY2d at 354-355). Accordingly, in Primo, we confirmed that no heightened standard exists for admission of third-party culpability evidence; instead admissibility of such evidence should be reviewed “under the general balancing analysis that governs the admissibility of all evidence” (id. at 356). In other words, courts should “exclude evidence of third-party culpability that has slight probative value and strong potential for undue prejudice, delay and confusion” (id. at 357) or where the evidence is so remote and speculative that it does not sufficiently connect the third party to the crime (see Holmes, 547 US at 327). We have reaffirmed this evidentiary standard in People v Negron (26 NY3d 262, 268 [2015]) and People v Schulz (4 NY3d 521, 528 [2005]).

The Primo standard for third-party culpability evidence— the general evidentiary balancing test — does not infringe upon a defendant’s constitutional right to present a complete defense. As the Holmes Court noted, rules applying the standard balancing test of prejudice versus probative value to proffers of third-party culpability evidence are “widely accepted” (547 US at 327). Requiring a defendant seeking to admit third-party culpability evidence to establish that the probative value of relevant evidence outweighs the appropriate countervailing factors is neither arbitrary nor disproportionate to the purpose of the rule. Indeed, in this context, “the countervailing risks of delay, prejudice and confusion are particularly acute” and “ [i] f those concerns were not weighed against the probative value of evidence, the fact-finding process would break down under a mass of speculation and conjecture” (Primo, 96 NY2d at 356-357).

We review a trial court’s determination concerning admissibility of third-party culpability evidence under an abuse of discretion standard (see Schulz, 4 NY3d at 529). Here, the trial court did not abuse its discretion by precluding defendant’s ambivalent offer of proof of third-party culpability. Defendant repeatedly declined to accuse Warren of committing the murder, proffering instead that the proof would show “someone else could have killed [Katz]” or that “[defendant] is not the only one who could have been there.” Given defendant’s theory for admission — that others could have had access to Katz’s home or might have had reason to kill her — the trial court did not abuse its discretion by precluding the proffered evidence (see People v Gamble, 18 NY3d 386, 398-399 [2012] [speculative assertions that other unidentified individuals had a motive to harm a victim are insufficient to support admission of third-party culpability evidence]).

To be clear, admission of third-party culpability evidence does not necessarily require a specific accusation that an identified individual committed the crime. For example, a proffer of an unknown DNA profile may be sufficient. And we reject the trial court’s assertion that such a specific accusation “is an essential element of third-party culpability.” Such a requirement would conflict with the balancing analysis that we announced in Primo and reaffirm today. Nevertheless, defense counsel’s argument must be assessed based on the proffer as articulated (see People v Collins, 109 AD3d 482, 482-483 [2d Dept 2013], lv denied 23 NY3d 1019 [2014] [refusing to address on appeal the defendant’s new theory for admission of evidence]; cf. People v Reed, 84 NY2d 945, 947 [1994] [refusing to address on appeal the defendant’s new theory for precluding admission of the People’s evidence]). The trial court was within its discretion in finding that proffer speculative and in determining the evidence to support it would have caused undue delay, prejudice, and confusion.

During deliberations, the jury sent a note to the trial court asking: “If one inflicts a critical wound on a person and does not assist the person, does the not assisting satisfy the question of intent to murder.” Upon such a request for instruction, CPL 310.30 requires the court to “give such requested information or instruction as the court deems proper.” The court must respond meaningfully to the request, but it is in the best position to evaluate the jury’s request and has discretion in framing an appropriate response (see People v Steinberg, 79 NY2d 673, 684 [1992]; People v Almodovar, 62 NY2d 126, 131-132 [1984]). Here, contrary to defendant’s assertion, the court responded meaningfully to the jury’s question.

The trial court did not abuse its discretion by prohibiting Warren’s sister from testifying or precluding evidence that a witness lied to parole office employees because such extrinsic evidence could not be used to impeach the witnesses on these collateral matters (see People v Knight, 80 NY2d 845, 847 [1992]). Finally, defendant’s claim that the sentencing court improperly considered uncharged conduct when imposing sentence is unpreserved for review.

Accordingly, the Appellate Division order should be affirmed.

Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur; Chief Judge DiFiore taking no part.

Order affirmed.