author: Graffeo, J.

text:
    [965 NE2d 928, 942 NYS2d 426]
    The People of the State of New York, Respondent, v Howard K. Smith, Appellant.
    Argued January 11, 2012;
    decided February 16, 2012

      POINTS OF COUNSEL

      Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh (Kathleen V. Wells of counsel), for appellant.
    Howard K. Smith’s mere innocent failure to submit to a breath test because he believed he could wait to consult with his attorney first was not a refusal and should not have been introduced against him and considered as evidence of consciousness of guilt. (People v Lynch, 195 Misc 2d 814; People v Rosado, 158 Misc 2d 50; People v Gursey, 22 NY2d 224; People v O’Rama, 78 NY2d 270; People v Niedzwiecki, 127 Misc 2d 919; People v Davis, 8 Misc 3d 158; Matter of White v Melton, 60 AD2d 1000; Matter of Sullivan v Melton, 71 AD2d 797; People v Basora, 75 NY2d 992; People v Thomas, 46 NY2d 100.)

      Thomas P. Zugibe, District Attorney, New City (Itamar J. Yeger of counsel), for respondent.
    The lower court properly considered defendant’s refusal to take the breathalyzer test as a “persistent refusal.” In any event, any error was harmless in light of defendant’s other acts constituting consciousness of guilt and the overwhelming evidence that his ability to drive was impaired. (People v Cruz, 48 NY2d 419; People v Gonzalez, 55 NY2d 720; People v Giles, 73 NY2d 666; People v Abrew, 95 NY2d 806; People v Gathers, 86 NY2d 159; Najjar Indus, v City of New York, 68 NY2d 943; People v O’Neil, 62 AD3d 727; People v Hucks, 175 AD2d 213; People v O’Rama, 78 NY2d 270; People v Cragg, 71 NY2d 926.)
   OPINION OF THE COURT

Graffeo, J.

As a consequence of a motor vehicle stop, defendant was convicted of driving while ability impaired. On appeal, he maintained that the trial court erred in permitting the People to introduce—as proof of consciousness of guilt—evidence that he refused to take a chemical breath test to determine his blood alcohol content when requested to do so by state troopers. We agree and we therefore reverse the conviction and remit for a new trial.

On March 28, 2007, at approximately 3:30 a.m., New York State troopers stopped defendant’s vehicle on the Palisades Parkway in Rockland County for a window tinting violation. When the troopers smelled alcohol on defendant’s breath, he was asked to exit his vehicle. After he failed field sobriety tests, defendant was arrested for driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). At the scene of the motor vehicle stop, the troopers administered Miranda warnings and chemical test warnings as contemplated in Vehicle and Traffic Law § 1194 (2) (f).

The chemical test warnings informed defendant:

“You are under arrest for driving while intoxicated. I am going to ask you if you will submit to a chemical test to determine the alcohol and/or drug content of your blood. Before I do, I must advise you that a refusal to submit to a chemical test or any portion thereof will result in the immediate suspension and subsequent revocation of your license or operating privileges, whether or not you are found guilty of the charge for which you were arrested. Your refusal to submit to a chemical test or any portion thereof can be introduced into evidence against you at any trial, proceeding or hearing resulting from this arrest. Do you understand what I have told you? Will you submit to a chemical test for the purpose of determining the alcohol and/or drug content of your blood?”

Defendant stated that he understood the warnings but wanted to speak to his lawyer before deciding whether to take a chemical test.

Defendant was transported to the state police barracks where he was given chemical test warnings a second time and asked if he was willing to consent to a test. Defendant again indicated that he wished to telephone his attorney. Although he was permitted to use the telephone, defendant was unable to reach his lawyer. A half hour later, the troopers read the chemical test warnings a third time and sought an answer from defendant concerning whether he would take a chemical test. Defendant responded that he was waiting for his attorney to call him back. At this juncture, the troopers interpreted defendant’s response as a refusal to submit to the test and they recorded that refusal on a form pursuant to Vehicle and Traffic Law § 1194 (2) (b).

At a pretrial hearing in connection with his driving while intoxicated charge, defendant moved to preclude the People from introducing evidence at trial that he refused to take the chemical test. Defendant asserted that he had never actually declined to be tested but merely requested an opportunity to contact his attorney first, which request was initially granted by the troopers. Because he was never advised that his time to seek a consultation with an attorney had elapsed, defendant maintained that he was unaware that his response to the third request—that he was waiting to hear back from his lawyer— would be interpreted as a refusal to take the test. He therefore argued that the People should not be permitted to offer evidence that he declined to take a chemical test in order to establish consciousness of guilt.

Town Court denied defendant’s motion to preclude, determining that defendant’s conduct amounted to a constructive refusal to take a chemical test and, at the subsequent bench trial, the People elicited evidence to that effect. Defendant was acquitted of driving while intoxicated but convicted of the lesser included offense of driving while ability impaired. On appeal, defendant challenged the admission of the refusal evidence at trial but the Appellate Term affirmed the conviction, reasoning that Town Court did not err in concluding that the proof was admissible (27 Misc 3d 135[A], 2010 NY Slip Op 50789[U] [2010]). A Judge of this Court granted defendant leave to appeal (15 NY3d 895 [2010]) and we now reverse.

Chemical breath tests to determine blood alcohol content (BAG) are an important investigative tool used by law enforcement in the effort to combat driving while intoxicated and related offenses. The administration of these tests is a time-sensitive proposition; to maximize the probative value of BAG evidence, the police endeavor to administer chemical tests as close in time as possible to the motor vehicle infraction, typically within two hours of an arrest.

The standards governing the administration of chemical tests to ascertain BAG in this circumstance are set forth in Vehicle and Traffic Law § 1194. Although there is no constitutional right to avoid submitting to a chemical test of this nature (see People v Shaw, 72 NY2d 1032 [1988]; People v Thomas, 46 NY2d 100, 108 [1978], appeal dismissed 444 US 891 [1979]), subdivision (2) (b) of that statute grants a motorist a qualified right to decline to voluntarily take a chemical test with the understanding that such a decision will have significant consequences: it will result in the immediate suspension and ultimate revocation of the motorist’s driver’s license for one year (Vehicle and Traffic Law § 1194 [2] [d]) and will permit the People to elicit evidence of such refusal at any subsequent criminal trial (Vehicle and Traffic Law § 1194 [2] [f]). However, those consequences flow from a refusal only if the motorist is first warned, “in clear and unequivocal language, of the effect of such refusal” (id.).

To implement the statute, law enforcement authorities have developed a standardized verbal warning of the consequences of refusal to take the test that is given to a motorist suspected of driving under the influence—the warning that was administered to defendant in this case. The duty to give the warning is triggered if the motorist is asked to take a chemical test and declines to do so. If, after being advised of the effect of such a refusal, the motorist nonetheless withholds consent, the motorist may be subjected to the statutory consequences.

Vehicle and Traffic Law § 1194 does not address whether a motorist has a right to consult with a lawyer prior to determining whether to consent to chemical testing. However, if the motorist is arrested for driving while intoxicated or a related offense, this Court has recognized a limited right to counsel associated with the criminal proceeding. In People v Gursey (22 NY2d 224, 227 [1968]), we held that if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police “may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand.” If such a request is made, and it is feasible for the police to allow defendant to attempt to reach counsel without unduly delaying administration of the chemical test, a defendant should be afforded such an opportunity. As we explained in Gursey, the right to seek the advice of counsel—typically by telephone—could be accommodated in a matter of minutes and in most circumstances would not substantially interfere with the investigative procedure. That being said, we made clear that there is no absolute right to refuse to take the test until an attorney is actually consulted, nor can a defendant use a request for legal consultation to significantly postpone testing. “If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise,” a defendant who has asked to consult with an attorney can be required to make a decision without the benefit of counsel’s advice on the question (id. at 229). Where there has been a violation of the limited right to counsel recognized in Gursey, any resulting evidence may be suppressed at the subsequent criminal trial (id.).

Here, defendant does not argue that his limited right to counsel was violated—nor could he. When defendant expressed a desire to consult with his lawyer, the troopers appropriately permitted him to telephone his attorney, fulfilling the requirements of Gursey. Moreover, the troopers even allowed defendant to wait a half hour for a return telephone call before they again approached him and asked whether he was willing to consent to a chemical test.

Thus, although this case involves a request to speak to counsel, the issue here is not whether defendant’s Gursey right was violated but, rather, whether proof that he refused a chemical test was properly admitted against him at trial. Under Vehicle and Traffic Law § 1194 (2) (f), evidence that a defendant declined to take a chemical test is admissible provided that defendant was clearly and unequivocally informed that this would be one of the ramifications of refusal. The proof is received to permit the inference of consciousness of guilt, i.e., “that defendant refused to take the test because of his apprehension as to whether he would pass it” (Thomas, 46 NY2d at 106). The admission of this type of evidence does not implicate a defendant’s right against self-incrimination because there is no compulsion to refuse to take the test; to the contrary, as was evident here where troopers gave defendant three opportunities to take the test, law enforcement officers would much rather secure accurate evidence of BAG than obtain the right to offer “refusal” evidence at trial (id.).

Needless to say, refusal evidence is probative of a defendant’s consciousness of guilt only if the defendant actually declined to take the test. And whether a defendant refused in a particular situation may be difficult to ascertain in cases where the accused did not communicate that intent in so many words. To be sure, a defendant need not expressly decline a police officer’s request in order to effectuate a refusal that is admissible at trial. A defendant can signal an unwillingness to cooperate that is tantamount to a refusal in any number of ways, including through conduct. For example, where a motorist fails to follow the directions of a police officer prior to or during the test, thereby interfering with the timing of the procedure or its efficacy, this can constitute a constructive refusal. As the People argue in this case, whether defendant’s words or actions amounted to a refusal often constitutes a mixed question of law and fact that requires the court to view defendant’s actions in light of all the surrounding circumstances and draw permissible inferences from equivocal words or conduct.

In this case, however, a pure issue of law is presented because there is no dispute concerning the events that led up to the trooper’s conclusion that defendant had refused to take the test and we are asked whether, drawing all permissible inferences in the light most favorable to the People, the evidence was sufficient to support the admission of refusal evidence. We conclude that it was not. Not only did the troopers grant defendant’s request to attempt to contact his attorney but they left him alone for a significant period of time to await the call back from his lawyer. The troopers did not indicate at any point that BAG tests were to be administered promptly or that defendant’s time to make a decision was limited. Hence, when defendant was asked on the third and final occasion whether he was willing to take a chemical test, he had no reason to know that his time for deliberation was over. Defendant responded in much the same way he had on previous occasions—he indicated that he was waiting to make a decision until he could consult with counsel. Since a reasonable motorist in defendant’s position would not have understood that, unlike the prior encounters, the further request to speak to an attorney would be interpreted by the troopers as a binding refusal to submit to a chemical test, defendant was not adequately warned that his conduct would constitute a refusal. The evidence of that refusal therefore was received in error at trial.

The People argue that such a finding will, in effect, compel law enforcement authorities to provide defendants with a litany of additional warnings not required by Vehicle and Traffic Law § 1194. In particular, the People suggest that a reversal here will require police officers to advise defendants concerning the contours of their limited right to counsel. But this is not the case. We have already rejected the notion that the police must notify a defendant concerning the limited right recognized in Gursey (Shaw, 72 NY2d 1032). All that is required for a refusal to be admissible at trial is a record basis to show that, through words or actions, defendant declined to take a chemical test despite having been clearly warned of the consequences of refusal. In this case, such evidence would have been present if, during the third request, troopers had merely alerted defendant that his time for deliberation had expired and if he did not consent to the chemical test at that juncture his response would be deemed a refusal. Indeed, we already approved the use of a comparable admonition in People v O’Rama (78 NY2d 270, 280-281 [1991]) where, after defendant continued to express his desire to consult with counsel before taking a chemical test despite his inability to promptly reach his lawyer, the police properly advised defendant that his insistence on waiting for his attorney would be interpreted as a refusal.

In the alternative, the People maintain that, even if there was error, reversal is not warranted because the error was harmless. We are unpersuaded, particularly since the trial court— which acted as the finder of fact—clearly relied on the consciousness of guilt evidence, indicating in its decision that it was this proof, coupled with defendant’s performance on field sobriety tests and the odor of alcohol, that led to the conviction on the driving while ability impaired count. Moreover, in response to a post-trial motion to set aside the verdict, the trial court adhered to its finding of guilt but characterized the proof on the driving while ability impaired charge as presenting “a fairly close question.” Under the circumstances, remittal for a new trial is warranted.

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

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

Order reversed, etc.

      . Although time is of the essence in obtaining chemical test evidence, if a defendant agrees to take the test, there is no per se statutory bar on admission of the results if the test was administered more than two hours after defendant’s arrest (see People v Atkins, 85 NY2d 1007 [1995]). Similarly, there is no time restriction on admission of the results of court-ordered chemical testing under Vehicle and Traffic Law § 1194 (3) or any additional test conducted by a physician at the behest of the motorist pursuant to Vehicle and Traffic Law § 1194 (4) (b) (id. at 1009). However, Vehicle and Traffic Law § 1194 (2) (a), the implied consent provision governing when a motorist “shall be deemed to have given consent to a chemical test,” does contain a two-hour limitation (see e.g. People v Hall, 61 NY2d 834 [1984] [where a blood test was performed on an incapacitated motorist within two hours of his arrest following a motor vehicle accident, test results were properly admitted at trial on an implied consent theory]).

      . If the motorist declines to consent, the police may not administer the test unless authorized to do so by court order (see Vehicle and Traffic Law § H94 [3]).


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    [965 NE2d 918, 942 NYS2d 416]
    The People of the State of New York, Respondent, v Mickey Cass, Appellant.
    Argued January 5, 2012;
    decided February 16, 2012

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Warren S. Landau and Lynn W.L. Fahey of counsel), for appellant.
    I. Appellant, who had been severely abused by his father and had serious psychiatric conditions as a result, was denied fair consideration of his extreme emotional disturbance defense by the admission of his videotaped confession to killing another gay man who had tried

      to sexually assault him. (People v Rojas, 97 NY2d 32; People v Alvino, 71 NY2d 233; People v Fiore, 34 NY2d 81; People v Condon, 26 NY2d 139; People v Molineux, 168 NY 264; People v Fitzgerald, 156 NY 253; People v Vargas, 88 NY2d 856; People v Allweiss, 48 NY2d 40; People v Arafet, 13 NY3d 460; People v McKinney, 24 NY2d 180.) II. Appellant was denied the effective assistance of counsel by his attorney’s failure to protest the prosecutor’s summation arguments that appellant was a “predator” and “multiple murderer” who  ‘systematically] prey[ed]” upon the vulnerable, that the defense expert was merely a “hired gun,” and that the defense tried to hide evidence and elicited testimony about appellant’s history of abuse merely to “tug at” the jury’s “heart.” (Strickland v Washington, 466 US 668; People v Turner, 5 NY3d 476; People v Baldi, 54 NY2d 137; Washington v Hofbauer, 228 F3d 689; People v Benevento, 91 NY2d 708; People v Zaborski, 59 NY2d 863; People v Wallace, 187 AD2d 998; People v Caban, 5 NY3d 143; Murray v Carrier, 477 US 478; Kimmelman v Morrison, 477 US 365.)

      Charles J. Hynes, District Attorney, Brooklyn (Joyce Slevin, Leonard Joblove and Victor Barall of counsel), for respondent.
    I. The trial court properly admitted evidence of a prior uncharged crime. In any event, any error was harmless. (People v Alvino, 71 NY2d 233; People v Allweiss, 48 NY2d 40; People v Marrin, 205 NY 275; People v Steinberg, 170 AD2d 50, 79 NY2d 673; People v Ingram, 71 NY2d 474; People v Santarelli, 49 NY2d 241; People v Till, 87 NY2d 835; People v Hudy, 73 NY2d 40; People v Ventimiglia, 52 NY2d 350; People v Rabideau, 82 AD3d 1283; People v Schicchi, 13 AD3d 470.) II. Defendant received effective assistance of counsel. (People v Brown, 17 NY3d 742; Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; Bierenbaum v Graham, 607 F3d 36; Williams v Taylor, 529 US 362; People v Turner, 5 NY3d 476; People v Baker, 14 NY3d 266; Greiner v Wells, 417 F3d 305, 546 US 1184; People v Caban, 5 NY3d 143; Rosario v Ercole, 601 F3d 118, 617 F3d 683.)

      . By a separate indictment, defendant was charged in Supreme Court, Erie County, with the Kevin Bosinski homicide.

   OPINION OF THE COURT

Jones, J.

The primary issue we address is whether the trial court properly admitted evidence of defendant’s uncharged murder to rebut defendant’s extreme emotional disturbance defense concerning the murder for which he was on trial. Although we have considered the use of Molineux evidence (People v Molineux, 168 NY 264 [1901]) to rebut a defense predicated on a defendant’s impaired state of mind in other contexts (see e.g. People v Santarelli, 49 NY2d 241 [1980] [legal insanity defense]), this appeal presents the first opportunity for the Court to address the use of Molineux evidence in the context of an extreme emotional disturbance defense.

In affirming the order of the Appellate Division, we hold that the evidence was properly admitted. Additionally, we reject defendant’s claim that he was denied effective assistance of trial counsel. Further, defendant’s claim, raised in his pro se supplemental brief, that he did not authorize defense counsel to raise the extreme emotional disturbance defense involves matters which are dehors the record, and is therefore not reviewable by this Court.

I

On September 25, 2003, defendant strangled his then roommate, Victor Dombrova, during an argument in Dombrova’s Brooklyn apartment in which Dombrova expressed that he wanted defendant to vacate the premises. After defendant killed Dombrova, he fled the crime scene. The police investigating the crime discovered defendant’s identity from a resume left at the apartment, and witnesses to the argument verified defendant’s identity. The police further discovered that defendant was wanted for questioning in Buffalo concerning a similar homicide. In the course of their investigation, the police located defendant’s former girlfriend who told them that defendant fled to Florida. They then placed a trap and trace/pin register on her phone, and, about a week after the homicide, defendant called the former girlfriend, was traced to Florida and arrested in that jurisdiction.

In a post-arrest statement, defendant told the police that, as a child, he was subjected to sexual abuse by his father over an extended period of time. Further, in written and videotaped statements, defendant admitted strangling Dombrova saying he “just lost it” and “snapped” when Dombrova grabbed his genitals and made other sexual advances towards him during their argument. Defendant said he strangled Dombrova with his hands and then used his belt to drag him to a closet in the apartment where the body was hidden. Defendant also admitted to strangling Kevin Bosinski in Buffalo on or about July 25, 2002—14 months before the Dombrova homicide—after meeting him in a bar. He said, on the night of the Buffalo homicide, he went to Bosinski’s apartment and fell asleep. According to defendant, when he awoke, he found Bosinski on top of him, kissing and grabbing him. In defendant’s words, he “completely lost control” and began to strangle Bosinski with his hands; at some point defendant used his belt to kill Bosinski. Defendant further explained that he told both Dombrova and Bosinski about his history as a victim of sexual abuse.

Defendant was charged with two counts of murder in the second degree (Penal Law § 125.25 [1], [2]), concerning the death by strangulation of Victor Dombrova. Prior to the jury trial for the Dombrova homicide, defendant announced he would raise the affirmative defense of extreme emotional disturbance, which, if successful, would mitigate, not negate, the element of intent and reduce the second-degree murder charge to first-degree manslaughter (another intentional crime) (see Penal Law § 125.25 [1] [a]; § 125.20 [2]).

The People moved in limine, pursuant to Molineux and People v Ventimiglia (52 NY2d 350 [1981]), to permit introduction of defendant’s statement regarding the death of Bosinski in Buffalo, arguing, inter alia, that defendant’s statement regarding the Buffalo events is highly relevant to trial issues in the Brooklyn homicide because it is necessary to rebut the defense of extreme emotional disturbance. Supreme Court granted the motion to the extent of permitting the People to enter into evidence defendant’s statement regarding the Bosinski strangulation and the autopsy report (to establish that Bosinski’s death occurred) on a Molineux theory (5 Misc 3d 495 [2004]). In the court’s view, defendant, by asserting the defense of extreme emotional disturbance, put his state of mind directly in issue, and therefore, “proof of other crimes may be admissible under the intent exception to the Molineux rule” (id. at 499). The court further reasoned that evidence of the Bosinski homicide had a bearing on defendant’s claim of extreme emotional disturbance because it tended to show that defendant had a premeditated intent to target gay men for violence, thereby countering defendant’s claim that his “loss of control,” and his actions as a result of this loss of control, arose from an impaired state of mind.

At trial, defendant admitted killing Dombrova and raised a defense of extreme emotional disturbance, claiming his violent response to Dombrova’s unexpected sexual advances was due to mental illness caused by protracted sexual abuse he suffered as a child. Defendant’s expert—Dr. Sanford L. Drob, a psychologist specializing in the areas of clinical and forensic psychology— testified that someone with defendant’s history of abuse and resulting disorders would be prone to “revictimization,” and therefore could experience more than one episode of extreme emotional disturbance when he finds himself in certain similar situations. But, the expert was unable to formulate an opinion to a reasonable degree of scientific certainty whether defendant had acted under extreme emotional disturbance in this case because he could not be sure, based on his discussions with defendant, what happened when defendant killed Dombrova. To rebut the defense, the People introduced defendant’s statements about his strangulation of Bosinski. The jury rejected the extreme emotional disturbance defense and convicted defendant of murder in the second degree, for killing Dombrova. He was sentenced to an indeterminate prison term of 25 years to life. The Appellate Division affirmed Supreme Court’s judgment (79 AD3d 768 [2010]), and a Judge of this Court granted defendant leave to appeal (17 NY3d 793 [2011]).

Defendant argues that his statement regarding the Bosinski homicide was inadmissible under Molineux and Santarelli because it had no direct or logical tendency to rebut his extreme emotional disturbance defense. In defendant’s view, this evidence only shows that when he was confronted with sexual aggression, he snapped, facts wholly consistent with his extreme emotional disturbance defense. Defendant further contends that, even if the Bosinski evidence had some probative value, it should have been excluded because that value was minimal compared to its highly prejudicial impact in portraying defendant as someone who targets and kills gay men. For the reasons that follow, defendant’s arguments are unavailing.

II

First pronounced by this Court in 1901 in People v Molineux (168 NY 264 [1901]), the familiar Molineux rule states that evidence of a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant’s propensity to commit the crime charged (see People v Alvino, 71 NY2d 233, 253 [1987]; People v Allweiss, 48 NY2d 40, 46 [1979]; see also People v Rojas, 97 NY2d 32, 36 [2001] [The basic principle underlying Molineux and its progeny is that “a criminal case should be tried on the facts and not on the basis of a defendant’s propensity to commit the crime charged”]). “While such evidence may be marginally relevant to the question of the accused’s guilt, its probative value is deemed to be outweighed by its potential for prejudice, and, accordingly, the evidence is excluded as a matter of judicial policy” (Santarelli, 49 NY2d at 247, citing Molineux 168 NY at 294 [remaining citations omitted]). The evidence of a defendant’s uncharged crimes and prior bad acts is

“objectionable not because it has no appreciable probative value but because it has too much. The natural and inevitable tendency of the tribunal— whether judge or jury—is to give excessive weight to the vicious record of crime thus exhibited and either to allow it to bear too strongly on the present charge or to take the proof of it as justifying a condemnation, irrespective of the accused’s guilt of the present charge” (1A Wigmore, Evidence § 58.2, at 1212; see Rojas, 97 NY2d at 36-37 [“propensity evidence invites a jury to misfocus, if not base its verdict, on a defendant’s prior crimes rather than on the evidence—or lack of evidence—relating to the case before it”]).

Thus, “[w]here . . . the evidence proves only criminal propensity and serves no other function in demonstrating defendant’s guilt of the crime charged, there is no legitimate basis for its admission. No degree of care, in assessing its value and possible prejudice and in giving cautionary instructions, can render it otherwise” (Alvino, 71 NY2d at 253). The Molineux rule is also meant “to eliminate the risk that a jury, not fully convinced of the defendant’s guilt of the crime charged may, nevertheless, find against him because his conduct generally merits punishment” (Allweiss, 48 NY2d at 46 [citations omitted]).

On the other hand, where the proffered Molineux evidence is relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes (see People v Ventimiglia, 52 NY2d 350, 359 [1981] [The Molineux rule’s “policy of protection against potential prejudice gives way when evidence of prior crime is probative of the crime now charged”]). Generally, evidence of uncharged crimes and prior bad acts may be admitted to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial (see Molineux, 168 NY at 293). These categories are not exhaustive; they are meant to illustrate the type of analysis to apply in cases involving potentially prejudicial Molineux evidence (see Ventimiglia, 52 NY2d at 359).

To determine whether Molineux evidence may be admitted in a particular case, the trial court must engage in the following two-part inquiry (see Alvino, 71 NY2d at 242; Allweiss, 48 NY2d at 46-47): first, the proponent of the evidence must identify some material issue, other than the defendant’s criminal propensity, to which the evidence is directly relevant (see Alvino, 71 NY2d at 242); once the requisite showing is made, the trial court must weigh the evidence’s probative value against its potential for undue prejudice to the defendant (see People v Hudy, 73 NY2d 40, 55 [1988], abrogated on other grounds by Carmell v Texas, 529 US 513 [2000]). If the evidence has substantial probative value and is directly relevant to the purpose—other than to show criminal propensity—for which it is offered, the probative value of the evidence outweighs the danger of prejudice and the court may admit the evidence (see Allweiss, 48 NY2d at 46-47; People v McKinney, 24 NY2d 180, 184 [1969]).

III.

In this case, defendant claims that his act of strangling Dombrova, while intentional, was committed under a state of extreme emotional disturbance. In the context of this defense, the mental infirmity is typically “a loss of self-control” (People v Harris, 95 NY2d 316, 319 [2000]). The defense of extreme emotional disturbance has two elements. First, it must be determined that the defendant actually “acted under the influence of extreme emotional disturbance” (People v Casassa, 49 NY2d 668, 678 [1980]), & subjective determination. Second, there must be “a reasonable explanation” for the defendant’s emotional disturbance, “determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be,” an objective determination which is to be made by “viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been” (id. at 678, 679). Unlike the situation where the defendant is claiming an innocent state of mind, the influence of an extreme emotional disturbance—if the defense is accepted—explains the defendant’s actions, but “does not negate intent . . . [or] make the action any less intentional” (People v Gonzalez, 1 NY3d 464, 469 [2004]).

By asserting the defense of extreme emotional disturbance, defendant necessarily put his state of mind at the time of the Dombrova killing in issue. We have held that where a defendant puts an affirmative fact—such as a claim regarding his/her state of mind—in issue, evidence of other uncharged crimes or prior bad acts may be admitted to rebut such fact (see Alvino, 71 NY2d at 248; see e.g. People v Ingram, 71 NY2d 474, 481 [1988] [in this prosecution for second-degree robbery, where the defendant allegedly acted as the getaway driver in connection with a holdup of a gas station, the defendant put the question of his criminal intent and state of mind directly in issue by offering an innocent explanation of his presence at the station and denying any knowledge that his accomplice planned to commit the robbery; the People were allowed to introduce evidence of a similar subsequent crime, under the intent or state of mind exception to the Molineux rule, to rebut the defendant’s claim that he lacked the requisite mental state to be held criminally liable]; Santarelli, 49 NY2d at 248). In so holding, we have consistently applied the well-settled principles of Molineux and its progeny.

We last addressed the People’s use of Molineux evidence to rebut a defense predicated on a defendant’s impaired state of mind in Santarelli. In that case, the defendant was charged in connection with the shooting death of his brother-in-law. At trial, he claimed that when the killing took place, he suffered from “temporary insanity,” thus putting his state of mind directly in issue. He sought to establish the defense through lay testimony concerning his unusual behavior in the weeks leading up to the shooting and through expert testimony indicating that his symptoms were consistent with a “break with reality” in the form of a “paranoid delusion” that his brother-in-law was trying to kill him (id. at 249). The prosecution sought to rebut defendant’s claim by establishing that the shooting was a product of the defendant’s explosive personality, not legal insanity. To that end, they offered proof, through testimony, that the defendant had committed a number of unprovoked, violent acts, unconnected with his brother-in-law, prior to the shooting at issue. The trial court permitted the introduction of all the evidence, the jury rejected the defendant’s claim of insanity and he was convicted of murder in the second degree; the Appellate Division affirmed.

This Court reversed the Appellate Division and remitted the case to County Court for further proceedings on the indictment, holding that “evidence of uncharged criminal or immoral conduct may be admitted as part of the People’s case on rebuttal if it has a tendency to disprove the defendant’s claim that he was legally insane at the time of the crime” (Santarelli, 49 NY2d at 248), and the trial court erred in admitting most of the evidence of defendant’s past violent conduct which, contrary to our settled case law, was not directly relevant to the issue of defendant’s sanity and which, in some cases, only demonstrated defendant’s general propensity toward criminality (see id. at 247, 251-252). In so holding, the Court stated that evidence of bad acts must have some “logical relationship” to, and a “direct bearing upon,” the People’s effort to disprove the insanity defense on rebuttal (id. at 249, 252), and assertion of the insanity defense opens the door to bad acts evidence “only to the extent that such evidence has a natural tendency to disprove his specific claim” (id. at 249). The Court also reiterated that trial courts must “take special care to ensure not only that the evidence bears some articulable relation to the issue, but also that its probative value in fact warrants its admission despite the potential for prejudice” (id. at 250).

With the foregoing principles in mind, we hold that defendant’s statement concerning the Bosinski homicide was properly admitted during the People’s case on rebuttal. Here, the People sought to introduce the Bosinski evidence for reasons other than to show defendant’s propensity towards violence. This highly probative evidence is directly relevant to defendant’s extreme emotional disturbance defense in that it has a logical and natural tendency to disprove his specific claim that he was acting under an extreme emotional disturbance at the time of the Dombrova homicide (see Santarelli, 49 NY2d at 248). The evidence arguably shows that defendant had a premeditated intent to target gay men for violence, thereby tending to rebut the loss of control he claimed as part of his extreme emotional disturbance defense. Thus, the evidence tends to establish that the subjective element of the defense has not been made out.

Further, the prosecution’s theory was that defendant deliberately targeted and killed gay men, and introducing defendant’s statement regarding the Bosinski homicide was consistent with this theory. Although the Bosinski and Dombrova homicides have strikingly similar characteristics, from the way each victim was killed to defendant leaving town after each killing, and it can be argued that the admission of the Bosinski statement is overly prejudicial propensity evidence, it is equally true that the repetition, duplication and similarity of defendant’s acts have a direct bearing on the question of premeditated intent. By asserting that he killed Dombrova under a state of extreme emotional disturbance, defendant put his state of mind at the time of the Dombrova homicide squarely in issue. As defendant’s state of mind was the main question the jury was required to resolve (based on all the relevant evidence), it logically follows that the jury had to be permitted to decide whether the repetitive actions defendant engaged in rebutted his claim of extreme emotional disturbance.

IV

Defendant further argues that he was denied effective assistance of counsel solely for defense counsel’s failure to object to prejudicial comments the prosecutor allegedly made during summation. During her summation, the prosecutor described defendant as a “predator” who systematically preyed upon the vulnerable. Although defense counsel did object to certain of the prosecutor’s summation comments, he did not object to the prosecutor’s characterization of defendant’s conduct as predatory. However, defendant has not shown that counsel lacked a legitimate explanation for not objecting or that, if counsel had objected, a mistrial would have been warranted. Further, the prosecutor’s characterization of defendant’s behavior as predatory was arguably a fair response to defense counsel’s summation argument that defendant’s acts were a reaction to what he perceived as a threat against him. Moreover, it was consistent with the prosecution’s theory of the case, i.e., based on the evidence adduced at trial, defendant acted with premeditation, not under the influence of an extreme emotional disturbance.

Defendant has not shown that defense counsel provided less than meaningful representation (see People v Benevento, 91 NY2d 708 [1998]); nor is counsel’s failure to object here the type of error that is so egregious or so clear cut and completely dispositive as to render counsel’s assistance ineffective (see People v Turner, 5 NY3d 476 [2005]); accordingly, defendant’s claim that he was denied effective assistance of counsel fails.

V

We have considered the arguments raised in defendant’s pro se supplemental brief, and conclude they are unreviewable or lack merit.

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

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

Order affirmed.

      . In a prosecution for second-degree (intentional) murder, it is an affirmative defense that
      “the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation . . . , the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be” (Penal Law § 125.25 [1] [a]).
      The extreme emotional disturbance defense “permit[s] the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them” (People v Patterson, 39 NY2d 288, 302 [1976], affd 432 US 197 [1977]).

      . This weighing of probative value versus potential for undue prejudice is discretionary; as such, our review is limited to determining whether the trial court abused its discretion; however, the threshold question of identifying a material issue to which the evidence is relevant poses a question of law (see Hudy, 73 NY2d at 55, citing Alvino, 71 NY2d at 242).

        . The extreme emotional disturbance defense does not absolve the defendant of criminal responsibility, but allows him/her “to demonstrate the existence of mitigating factors which indicate that” he/she should be “punished less severely” (People v Roche, 98 NY2d 70, 75 [2002]) because the intentional homicide resulted from “an understandable human response deserving of mercy” (Harris, 95 NY2d at 318).

      . The prior bad acts evidence included defendant’s participation in a barroom scuffle, his beating of a shop steward, and his conviction for possessing a gun.

      . The evidence is also relevant to the objective element of the extreme emotional disturbance defense. Under the circumstances, it was arguably foreseeable to defendant that if Dombrova made an unwanted sexual advance toward him, like Bosinski did, he could react violently. Because defendant twice put himself in a position where he could commit a deadly act, a jury could reasonably find that defendant’s emotional response to Dombrova’s advance was unreasonable, as opposed to “an understandable human response deserving of [the] mercy” afforded by the extreme emotional disturbance defense (Harris, 95 NY2d at 318).

      . Since evaluation of defendant’s repetitive actions are not beyond the ken of the average juror, it was not necessary for the People to offer expert testimony to rebut the expert testimony offered by defendant.


author: Graffeo, J. Smith, J. (concurring).

text:
    [965 NE2d 949, 942 NYS2d 447]
    Ronald Bruce Posner, Respondent, v Russell T. Lewis et al., Appellants.
    Argued January 4, 2012;
    decided February 21, 2012

      POINTS OF COUNSEL

      Cahill Gordon & Reindel LLP, New York City (Thomas J. Kavaler and M. Justin Lubeley of counsel), for appellants.
    Respondent’s claims sounding in prima facie tort and tortious interference must be dismissed because they are premised entirely and exclusively on privileged and protected speech. (Brandt v Winchell, 3 NY2d 628; ATI, Inc. v Ruder & Finn, 42 NY2d 454; Weissman v Mogol, 118 Misc 2d 911; New York Times Co. v Sullivan, 376 US 254; Prozeralik v Capital Cities Communications, 82 NY2d 466; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Carlton v Nassau County Police Dept., 306 AD2d 365; Curiano v Suozzi, 63 NY2d 113.)

      Krauss PLLC, White Plains (Geri S. Krauss of counsel), and Jonathan P. Arfa, PC. (Jonathan P. Arfa of counsel), for respondent.
    I. The court below properly held that defendants’ statements and actions were not “absolutely privileged.” (Taker v Pollak, 44 NY2d 211; Park Knoll Assoc. v Schmidt, 59 NY2d 205; Clark v McGee, 49 NY2d 613; Stukuls v State of New York, 42 NY2d 272; Andrews v Gardiner, 224 NY 440; ATI, Inc. v Ruder & Finn, 42 NY2d 454; Penn-Ohio Steel Corp. v Allis-Chalmers Mfg. Co., 7 AD2d 441; Holy Spirit Assn. for Unification of World Christianity v New York State Congress of Parents & Teachers, 95 Misc 2d 548; Brandt v Winchell, 3 NY2d 628; Mejia v City of New York, 119 F Supp 2d 232.) II. Decisions of this Court subsequent to Brandt have imposed further limitations on absolute immunity which bar its application here. (Brandt v Winchell, 3 NY2d 628; Park Knoll Assoc. v Schmidt,
      59 NY2d 205; Taker v Pollak, 44 NY2d 211; Weissman v Mogol, 118 Misc 2d 911; Garson v Hendlin, 141 AD2d 55; Dunajewski v Bellmore-Merrick Cent. High School Dist., 138 AD2d 557.) III. Defendants’ activities are not protected by the First Amendment. (Bill Johnson’s Restaurants, Inc. v NLRB, 461 US 731; Herbert v Lando, 441 US 153; Branzburg v Hayes, 408 US 665.)
   OPINION OF THE COURT

Graffeo, J.

In this tort action, we must decide whether defendants’ course of conduct in instigating complaints to school authorities against plaintiff, a nontenured teacher, is entitled to an absolute privilege under Brandt v Winchell (3 NY2d 628 [1958]) that would warrant dismissal of plaintiffs causes of action for prima facie tort and tortious interference with prospective contractual rights. Assuming the truth of the allegations in the complaint, as we must at this early stage of the litigation, we conclude that defendants’ conduct is not immunized by Brandt.

On a CPLR 3211 motion to dismiss, we are obligated to give the complaint a liberal construction and accept the allegations as true. Providing plaintiff Ronald Posner with every favorable inference, the facts gleaned from the complaint are as follows. Beginning in 2005, Posner was employed by the Pelham Union Free School District in Westchester County as a nontenured elementary school teacher. In March 2008, after Posner’s wife accused him of having an extramarital affair, his father-in-law, defendant Russell Lewis (the former CEO of the New York Times Company), instructed Posner to leave the marital residence, which Russell owned. When Posner returned to retrieve personal items, Russell warned that if he “did not go quietly,” Russell would “make trouble” for him. Three days later, Posner’s wife commenced a divorce proceeding.

In early April 2008, Russell informed Posner that he wanted him to make a “clean break” from his wife. It later became evident that Russell wanted his son-in-law to relinquish all parental rights to his newborn daughter. To entice the acceptance of his proposal, Russell offered Posner a sum of money and “threatened to go to the Pelham Board of Education and impact his tenure.” When Posner refused, Russell and Posner’s brother-in-law, defendant David Lewis (an attorney), engaged in conduct designed to effectuate the denial of Posner’s tenure and the revocation of his teaching license.

In April 2008, the principal at the school where Posner taught informed him that the board of education was favorably inclined to approve him for tenure status but that the decision would not be made formally until a June board meeting. Meanwhile, the Lewises retained a company specializing in forensic computer investigations to search for Posner’s e-mails on his home computer. David then sent a letter dated April 14, 2008 to the State Department of Education accusing Posner of having an affair with the parent of one of his students, who was also recommended by Posner to be a substitute teacher in his class. David demanded disciplinary action, including revocation of Posner’s teaching license. The letter referenced segments of the e-mails between Posner and his alleged paramour. After the Department of Education informed the school district about the complaint, David telephoned the school district superintendent “demanding to know what was going on in the investigation and what disciplinary actions were being taken.”

Toward the end of April, the principal notified Posner that the school district was required to investigate the complaint but assured him that his private life should not affect his application for tenure. Shortly thereafter, David sent a second letter to the superintendent and each member of the board of education with a copy of a report prepared by the computer firm and Posner’s e-mails. The letter urged school officials to “take the strongest measure of disciplinary action” against Posner. After a May 2008 board meeting, Posner was advised that he no longer had sufficient votes for tenure, causing him to tender his resignation before the final June vote.

Posner commenced this action against defendants asserting causes of action for prima facie tort and tortious interference with prospective contractual relations. The complaint alleges that Posner was not granted tenure because of the continuous pressure and influence exerted upon school officials by defendants and that, as a result of their “wrongful and malicious actions, Plaintiff Posner was and continues to be unable to secure another tenure track teaching position in a public school district in Westchester County.”

Defendants moved to dismiss the complaint pursuant to CPLR 3211, arguing that their disclosure of Posner’s affair to school officials was a matter of public interest and that they were immune from liability similar to the defendants in Brandt. Supreme Court denied the motion (2009 NY Slip Op 33245[U] [2009]) and a divided Appellate Division affirmed (80 AD3d 308 [1st Dept 2010]). The Appellate Division granted defendants leave to appeal on a certified question, and we now affirm.

Defendants contend that Posner’s claims for prima facie tort and tortious interference with prospective contract rights should be dismissed because their exposure of his misconduct to school authorities was in the public interest and hence absolutely privileged. They assert that under Brandt they are immune from civil liability for instigating official action against Posner, regardless of whether they possessed a malicious intent. Posner responds that defendants are not entitled to an absolute privilege because their communications to school officials, even if related to matters of public concern, were made in connection with a coercive scheme to deprive Posner of his parental rights.

To begin, defendants do not dispute for purposes of this appeal that, absent the application of immunity recognized in Brandt, the complaint would adequately plead causes of action for prima facie tort and tortious interference with prospective contractual relations. The outcome of this case therefore turns on whether Brandt mandates dismissal of the action.

In Brandt, the plaintiff brought a prima facie tort claim against columnist Walter Winchell and philanthropist Elmer Bobst for maliciously provoking an official investigation against a cancer fund organized by plaintiff in order to stifle competition with defendants’ cancer research fund. Following an investigation by the Attorney General, plaintiff agreed to dissolve the fund and refrain from any future solicitation of charitable contributions. We affirmed the dismissal of the complaint, applying a balancing test for claims alleging that a lawful act (the making of a complaint) became unlawful as a result of the complaining party’s malicious motives—we “analyze[d] and weighted] the conflicting interests of the parties and of the pub-lie in order to determine which shall prevail” (3 NY2d at 634-635).

We concluded in Brandt that defendants’ lawful act of initiating charges related to plaintiffs mishandling of the charitable fund did not become actionable because it was motivated by personal malevolence, reasoning that “[t]he best interests of the public are advanced by the exposure of those guilty of offenses against the public and by the unfettered dissemination of the truth about such wrongdoers” (id. at 635). Under these circumstances, the Brandt defendants were “entitled to immunity from civil suit at the hands of the one exposed, for the truth is not to be shackled by fear of a civil action for damages” (id.; see also ATI, Inc. v Ruder & Finn, 42 NY2d 454, 460 [1977] [“(S)ince use of plaintiff’s product may be injurious, that perhaps some defendants were motivated to harm plaintiff by alerting the public as to the potential hazard does not require a conclusion that these defendants’ conduct is without justification”]).

There are some similarities between Brandt and this case. As in Brandt, defendants reported misconduct to the relevant authorities and prompted an official investigation regarding a matter of public interest. And like Brandt, defendants were allegedly motivated not by a desire to benefit the public but to harm the target of their animosity for personal reasons. But, as the Appellate Division majority noted, there is a critical distinction between the two cases. Accepting the allegations of the complaint to be true, defendants in this case did more than instigate an inquiry or investigation. According to Posner, Russell attempted to coerce him into relinquishing his parental rights by offering him money and threatening to reveal certain information to school authorities to ensure that he was denied tenure. And when Posner refused to accede to this demand, defendants made good on the threat. Posner’s complaint therefore does not merely allege a malicious motive; rather, it asserts what is in essence a blackmail scheme. Contrary to defendants’ position, their complaints to school officials cannot be isolated from this coercive scheme, which “constituted a single and integrated course of conduct” (Giboney v Empire Storage & Ice Co., 336 US 490, 498 [1949] [“(T)he record here does not permit this publicizing to be treated in isolation”]). In light of the intimidation and threatening conduct allegedly directed at Posner, we conclude that the absolute privilege articulated in Brandt should not be extended to protect the course of conduct alleged in this case.

Although the concurrence claims that our focus is on defendants’ motives, in fact, the dispositive allegation that places this case outside of the realm of Brandt and the other cases cited by the concurring opinion is an affirmative act—defendants’ conduct in attempting to blackmail Posner. As we have explained, the publicizing that occurred in this case cannot be neatly separated from this coercive scheme. To the extent defendants claim that the conduct alleged here is entitled to immunity under the First Amendment, we note that it has been consistently held that blackmail and extortion are not protected speech (see R.A.V. v St. Paul, 505 US 377, 420 [1992, Stevens, J., concurring] [“Although the First Amendment broadly protects ‘speech,’ it does not protect the right to . . . extort” (internal quotation marks and citation omitted)]; Planned Parenthood of Columbia/Willamette, Inc. v American Coalition of Life Activists, 244 F3d 1007, 1015 n 8 [9th Cir 2001] [“Blackmail and extortion—the threat that the speaker will say or do something unpleasant unless you take, or refrain from taking, certain actions—are not constitutionally protected”], rehearing era banc 290 F3d 1058 [9th Cir 2002]).

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

Smith, J. (concurring).

I agree with the result reached by the majority, but not with its reasoning. I believe the privilege recognized in Brandt v Winchell (3 NY2d 628 [1958]) is absolute, and not subject to a case-by-case balancing of conflicting interests, even where, as here, “a blackmail scheme” (majority-op at 571) is alleged. I conclude, however, that the communications that are the basis for this action are outside the scope of the privilege recognized in Brandt, not because of the motive behind them, but because they did not involve either a matter of public concern or an accusation of serious criminal conduct.

I begin this opinion by explaining why I believe that neither a balancing test nor an exception for blackmailers is consistent with the Brandt privilege as we have described it. I then examine the relationship between the Brandt rule and the rules developed in New York Times Co. v Sullivan (376 US 254 [1964]) and later cases; that relationship strengthens my conclusion that case-by-case balancing is the wrong approach, and that even speech motivated by blackmail is protected. Finally, I explain why I think this plaintiffs complaint should not be dismissed.

I

Brandt recognized an “immunity from civil suit” for truthful communications resulting in “the exposure of those guilty of offenses against the public” (3 NY2d at 635). The plaintiff in Brandt was the organizer of an agency that collected funds for needy victims of cancer. Defendant Winchell, a well-known reporter and commentator, was active on behalf of a cancer research organization. The plaintiffs claim was that Winchell and his codefendants, seeking to eliminate competition from the plaintiffs group, had persuaded public agencies, including the New York Attorney General and a District Attorney, to investigate and prosecute the plaintiff and take other action against him, and had accused the plaintiff of wrongdoing in print and on the radio.

In affirming a judgment dismissing the Brandt complaint, we made clear that the “immunity” we recognized was absolute, and did not depend on how bad the defendant’s motive was. We said:

“If the one who sets the agencies in motion is actuated by an evil motive he may perhaps be subject to judgment in the forum of morals but he is free from liability in a court of law.” (Id. at 635.)

We explained that such an ill-motivated party “is entitled to immunity from civil suit at the hands of the one exposed, for the truth is not to be shackled by fear of a civil action for damages” (id.).

We applied the rule of Brandt in ATI, Inc. v Ruder & Finn (42 NY2d 454, 456 [1977]), where the plaintiff, a manufacturer and packager of aerosol products, claimed that the defendants, an advertising agency and individuals connected with it, had set out “to intimidate” plaintiff into retaining the agency’s services by publicizing the theory that aerosols were linked to the destruction of the earth’s ozone layer. Again, we made clear that the immorality of defendant’s alleged conduct was irrelevant: “However morally reprehensible the asserted conduct of some of the defendants may be considered to be, it is not actionable in the courts” (id.).

The majority says that we applied “a balancing test” in Brandt (majority op at 570). But the whole point of Brandt and ATI is vitiated, it seems to me—and the words I have quoted from those cases lose their meaning—if the defendant’s moral culpability is to be balanced in each case against the public interest served. If such a balancing test exists the result of each case will be unpredictable and, to use the words of Brandt, the “fear of a civil action for damages” will not be eliminated; thus “the truth” will “be shackled.” The Brandt rule, to have its proper effect, must protect even blackmailers, and ATI holds that it does: the public relations firm in ATI had written a letter to the plaintiff that, in the plaintiffs interpretation, was a threat to ruin the plaintiffs business if the plaintiff did not retain the firm, but the firm’s communications were still privileged.

The majority finds a balancing test in the following sentence from Brandt:

“Accordingly, it may fairly be said that whenever the gist of an alleged cause of action (as here) is that an otherwise lawful act has become unlawful because the actor’s motives were malevolent, the court is called upon to analyze and weigh the conflicting interests of the parties and of the public in order to determine which shall prevail.” (3 NY2d at 634-635.)

I think the majority reads this passage out of context. In light of the clear language in Brandt creating an absolute privilege, the quoted sentence should not be read to require balancing in each case of “the conflicting interests of the parties and of the public.” Rather, I think the Brandt court spoke of analyzing and weighing conflicting interests to describe the process it went through in deciding to adopt a rule of absolute immunity.

The balancing was done in Brandt, once and for all, and is not to be repeated in every case.

II

The privilege for truthful communications recognized in Brandt and ATI overlaps with—may, indeed, be subsumed by— the privilege or privileges for communications believed to be truthful recognized in the line of cases that begins with New York Times Co. v Sullivan. New York Times recognized a constitutionally-based rule “that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made . . . with knowledge that it was false or with reckless disregard of whether it was false or not” (376 US at 279-280). In Gertz v Robert Welch, Inc. (418 US 323, 347 [1974]) the Court held that more limited, but significant, protection was available “for a publisher or broadcaster of defamatory falsehood injurious to a private individual”; in such cases, the Constitution prohibits imposition of “liability without fault”—i.e., liability imposed on someone not at least negligent in believing the “defamatory falsehood” to be true. And in Chapadeau v Utica Observer-Dispatch (38 NY2d 196, 199 [1975]), acting “within the limits imposed” by Gertz, we chose to give somewhat broader protection than Gertz required. We held that a defamed party could recover only by showing “that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties” (id.).

New York Times, Gertz and Chapadeau all involved statements that were, or were alleged to be, false. The parties making those false statements were held to be protected from liability as long as they did not know, and were not sufficiently at fault in failing to know, that what they said was not true. It follows a fortiori that a party making a statement that is true must receive immunity under New York Times, Gertz and Chapadeau. In Garrison v Louisiana (379 US 64, 73 [1964]), the United States Supreme Court recognized the obvious point that truth is entitled to no less protection than falsity. The Court expressed agreement with what a state court had said more than a century before:

“If upon a lawful occasion for making a publication, he has published the truth, and no more, there is no sound principle which can make him liable, even if he was actuated by express malice. . . .
“It has been said that it is lawful to publish truth from good motives, and for justifiable ends. But this rule is too narrow. If there is a lawful occasion—a legal right to make a publication—and the matter true, the end is justifiable, and that, in such case, must be sufficient.” (State v Burnham, 9 NH 34, 42-43 [1837], quoted in Garrison, 379 US at 73; see also Philadelphia Newspapers, Inc. v Hepps, 475 US 767, 776 [1986] [requiring a plaintiff to bear the burden of proving that the statements at issue are false].)

I believe the results in both Brandt and ATI would have been compelled by the line of cases derived from New York Times that I have just summarized. Indeed, it is not clear to me that the rule of Brandt protects anything that the New York Times line of cases does not protect (though it may—I will discuss this question below). No one, so far as I know, has suggested that the protection afforded by New York Times and later cases can be eliminated by the sort of “balancing” the majority does here—one that takes into account the defendant’s evil motive. On the contrary, under New York Times and related cases, the only “malice” that is relevant is knowledge of, or indifference to, the falsity of one’s utterances. If the utterances are not in fact false, the motive of the speaker, as Garrison held, is irrelevant.

The majority opinion here disavows any “focus on defendants’ motives” (majority op at 572); but in fact the alleged motive for defendants’ communications is the majority’s only basis for finding the Brandt privilege inapplicable. Plaintiff’s claim is that defendants disclosed his adultery and other misdeeds because he rejected their demand that he surrender rights to his child. Motive, and motive only, links those disclosures to the alleged blackmail scheme the majority relies on. Defendants’ letters and telephone call to the Department of Education and the school district were not blackmailing in themselves; if they were, I agree with the majority that they would be outside constitutional protections (see Watts v United States, 394 US 705, 707 [1969]).

In short, the majority today holds that motive may defeat the Brandt privilege. The result is that Brandt offers less protection than the United States Constitution requires.

III

I nevertheless agree with the majority’s result in this case: Plaintiffs claim is not barred. I reach this result not by balancing, but by concluding that the communications at issue here— quite apart from the alleged blackmail scheme that motivated them—are not of the kind to which the cases I have discussed are applicable.

Defendants rely primarily on Brandt and ATI. They cite New York Times, Garrison, Chapadeau and other related cases to bolster their argument, but never clearly argue that the New York Times line of cases is controlling here. They are wise to avoid that argument, because the protections that cases following New York Times afford against civil liability are unavailable where the statements in issue “do not involve matters of public concern” (Dun & Bradstreet, Inc. v Greenmoss Builders, Inc., 472 US 749, 751 [1985]). The subject of the communications at issue here—principally, plaintiffs adulterous affair with a fellow teacher—was not a matter of “public concern” in the relevant sense.

Defendants insist that the affair, and the other topics covered in defendants’ communications with the Department of Education and the school district, were of interest to the public, because plaintiff was a public employee. I agree that the school district, as plaintiffs employer, could reasonably be interested in knowing the things that defendants told it. Like any other employer, a school district can legitimately consider facts that bear on its employee’s character or judgment. It might think that a man who cheated on his pregnant wife set a poor example for the students; it could certainly conclude that plaintiff acted unprofessionally in choosing for his romantic partner a fellow employee whose child was in his class; and it might be distressed to know of another fact mentioned in defendants’ communications—that the resume plaintiff had submitted to the school district failed to mention a previous employment that had “terminated abruptly.”

But not every fact about a public employee that his employer might want to know is a matter of “public concern” under the Dun & Bradstreet limitation on the New York Times line of cases. That line of cases is designed to protect debate about public issues (see Garrison, 379 US at 73 [“Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred”]; Hustler Magazine, Inc. v Falwell, 485 US 46, 53 [1988] [“in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment”]; Prozeralik v Capital Cities Communications, 82 NY2d 466, 474 [1993] [the New York Times “rule was promulgated in recognition ‘of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open’ ” (quoting New York Times, 376 US at 270)]). As we put it in Chapadeau, a matter “within the sphere of legitimate public concern” is one “which is reasonably related to matters warranting public exposition” (38 NY2d at 199). Or, as Supreme Court said in San Diego v Roe (543 US 77, 83-84 [2004]): “public concern is something that is a subject of legitimate news interest.”

Nothing in this record suggests that the matters discussed in the communications at issue in this case were, or were likely to become, the subject of public debate. Who plaintiff slept with and how complete his resume was were not matters “warranting public exposition” or “of legitimate news interest.” The communications at issue therefore did not address a matter of “public concern” (cf. Connick v Myers, 461 US 138, 146-149 [1983] [holding a public employee’s comments on the trustworthiness of her supervisors and the level of office morale not to be a matter of “public concern”]).

For these reasons, I conclude that the New York Times line of cases does not apply here. It is possible, as I suggested above, that Brandt is no more than a forerunner of those cases, and that the Brandt privilege is now subsumed within the later cases—and if that is so, I can end my opinion here. Brandt and ATI can plausibly be read as designed to protect only communications on matters of public concern. The communications involved in those cases were clearly in that category: Brandt involved a topic discussed “in nationally circulated printed publications and in nationally broadcast radio programs” (3 NY2d at 632), and ATI involved the threatened destruction of the ozone layer.

But it is also possible to interpret the Brandt privilege more broadly, as protecting “the exposure of those guilty of offenses against the public” (3 NY2d at 635), whether the offenses themselves were matters of “public concern” or not. If “offenses against the public” is taken to mean serious criminal wrongdoing (which was at issue in Brandt itself), this broader reading of Brandt may be plausible. In this case, for example, if defendants had truthfully accused plaintiff of larceny or possession of a controlled substance, a fair argument could be made that the communications, even if their subject matter was not of “public concern,” would be absolutely privileged.

But it is completely unacceptable to extend the Brandt privilege to “offenses” as minor as adultery (a class B misdemeanor that is never prosecuted) or an omission from a resume. I see no basis in Brandt, or in the policies underlying it, for extending it to shelter the bad faith exposure of such relatively minor misconduct. The Brandt privilege should be held to protect, at most, communications about matters of public concern or about significant criminal activity. Because this case involves neither, Brandt does not apply and the complaint has correctly been allowed to stand.

Chief Judge Lippman and Judges Ciparick and Jones concur with Judge Graffeo; Judge Smith concurs in result in a separate opinion in which Judge Pigott concurs; Judge Read concurs in result for the reasons stated in Part III of Judge Smith’s concurring opinion.

Order affirmed, etc.

      . To state a legally cognizable claim for prima facie tort, a plaintiff must allege “(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful” (Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]). In addition, there can be no recovery under this theory “unless malevolence is the sole motive for defendant’s otherwise lawful act or, in [other words], unless defendant acts from disinterested malevolence” (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983] [internal quotation marks and citations omitted]).

      . To state a cause of action for tortious interference with prospective contractual relations, a plaintiff must plead that the defendant directly interfered with a third party and that the defendant either employed wrongful means or acted “for the sole purpose of inflicting intentional harm on plaintiff! ]” (Carvel Corp. v Noonan, 3 NY3d 182, 190 [2004] [internal quotation marks and citation omitted]).

      . Defendants and the concurrence rely on ATI, Inc. v Ruder & Finn (42 NY2d 454 [1977]) in asserting that Brandt protects blackmailers. But ATI does not sweep so broadly. The public relations firm in ATI suggested that plaintiff would be adversely affected by federal and public entities if it did not retain its services to tell plaintiffs side of the story in the public debate about the environmental dangers of plaintiff’s aerosol products. Although the plaintiff in ATI characterized defendant’s actions as intimidation tactics, this is a far cry from the blackmail scheme alleged in the complaint here.

      . There is authority for the proposition that although blackmail is not constitutionally protected, a plaintiff seeking to recover reputational damages (as opposed to economic damages) flowing from the subsequent publication must satisfy the applicable defamation standard—notably, falsity—even where the plaintiff relies on non-defamation tort theories (see Smithfield Foods, Inc. v United Food & Commercial Workers Inti. Union, 585 F Supp 2d 815, 822 [ED Va 2008]). The parties here have not addressed the Smithfield analysis nor have they litigated the issue of whether the complaint in this case seeks reputational or economic damages. We therefore have no occasion to address these issues.


text:
    [965 NE2d 939, 942 NYS2d 437]
    Thomas H., Appellant, v Paul B. et al., Respondents.
    Argued January 9, 2012;
    decided February 21, 2012

      POINTS OF COUNSEL

      Law Office of Mickey A. Steiman, Hyde Park (Mickey A. Steiman of counsel), and Robert N. Palmer, Poughkeepsie, for appellant.
    I. The decision and order of the Appellate Division is inconsistent with clear principles of defamation jurisprudence requiring critical analysis of claims of non-actionable expression. (Steinhilber v Alphonse, 68 NY2d 283; Mann v Abel, 10 NY3d 271; Gross v New York Times Co., 82 NY2d 146; Silver-man v Clark, 35 AD3d 1; Vengroff v Coyle, 231 AD2d 624.) II. The Appellate Division erroneously engaged in factual issue determination in concluding defendants’ alleged statements constituted statements of opinion and not of fact. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Kolivas v Kirchoff, 14 AD3d 493; Judice v DeAngelo, 272 AD2d 583; Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557; Alvarez v Prospect Hosp., 68 NY2d 320; Rodriguez v OD&P Constr., 194 Misc 2d 284; Director, Office of Workers' Compensation Programs v Greenwich Collieries, 512 US 267; 300 E. 34th St. Co. v Habeeb, 248 AD2d 50.)

      Murphy & Lambíase, Goshen (George A. Smith of counsel), for respondents.
    I. The purported statements are not actionable because even if they were made, they were nothing more than a truthful recitation of defendants’ daughter’s allegations against Thomas H. (Golub v Enquirer/Star Group, 89 NY2d 1074; Stephan v Cawley, 24 Misc 3d 1204[A], 2009 NY Slip Op 51248[U]; Tourge v City of Albany, 285 AD2d 785; Vengroff v Coyle, 231 AD2d 624; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Jung Hee Lee Han v State of New York, 186 AD2d 536; Mann v Abel, 10 NY3d 271; Brian v Richardson, 87 NY2d 46.) II. Hyperbole, imaginative speech and opinion are all non-actionable. (Milkovich v Lorain Journal Co., 497 US 1; Letter Carriers v Austin, 418 US 264; Immuno AG. v Moor-Jankowski, 77 NY2d 235; Steinhilber v Alphonse, 68 NY2d 283; Kamalian v Reader’s Digest Assn., Inc., 29 AD3d 527; Brian v Richardson, 87 NY2d 46; Mann v Abel, 10 NY3d 271; Balderman v American Broadcasting Cos., 292 AD2d 67; Parks v Steinbrenner, 115 AD2d 395; Zion v NYP Holdings, Inc., 18 AD3d 376.) III. Statements which are not actionable do not become actionable because in another context they would be slander per se. (Liberman v Gelstein, 80 NY2d 429; Cavallaro v Pozzi, 28 AD3d 1075; McCullough v Certain Teed Prods. Corp., 70 AD2d 771; Tourge v City of Albany, 285 AD2d 785; Jordan v Lewis, 20 AD2d 773; Brian v Richardson, 87 NY2d 46; Arrigoni v Velella, 110 AD2d 601; Aronson v Wiersma, 65 NY2d 592.)
   OPINION OF THE COURT

Graffeo, J.

On this record, we hold that defendants are not entitled to summary judgment because they failed to establish as a matter of law that they did not defame plaintiff.

Plaintiff Thomas H. and his wife, Karen, are acquainted with defendants Paul and Nancy B. The couples were introduced by one of Karen’s sisters and they occasionally spent time together at a residence in Vermont. Defendants’ young son and daughter would join them on these excursions.

In early 2005, defendants’ daughter revealed to her parents that plaintiff had raped and molested her at the Vermont residence in February 2002 and 2004, when she was 10 and 12 years old. After hearing about these incidents, Paul brought his daughter to speak with Vermont law enforcement officials and a police report was prepared. Plaintiff was never charged with a crime in connection with these allegations.

Defendants, along with Karen’s two sisters, decided to notify Karen about her husband’s alleged actions and inform her that defendants would soon be filing a civil suit against her husband. In February 2006, all four went to Karen’s apartment in Manhattan to convey this information. What was said during this meeting is sharply disputed by the parties.

In his pretrial deposition, Paul could not remember what he specifically discussed with Karen but recalled that the conversation focused on his daughter’s accusations against Karen’s husband. He also could not confirm that he was the person who stated that plaintiff had “raped” the child, though he did admit to telling Karen that if he had a gun, he would have shot her husband.

Nancy testified that, although she did not tell Karen that her husband had raped the child, she thought that someone else made such a declaration at least once during the discussion. Another individual who was present could not remember the precise details of what occurred but testified that the general topic of discussion was that defendants’ daughter had accused plaintiff of sexual abuse and molestation.

Contrary to defendants’ version of the exchange, Karen claimed that as soon as she opened her door to the visitors, someone declared “It’s Tom, it’s Tom . . . He raped [the girl].” She indicated that it was Paul who stated that “Tom had raped [the girl] twice up in Vermont” and that Nancy had described the incidents to her as follows:

“That in 2002 [plaintiff] waited until everybody was asleep, snuck out of his bedroom, went into the bedroom where [the girl] was sleeping, picked her up, carried her back to his bedroom, tried to have sexual relations with [her] and couldn’t because he couldn’t maintain an erection, then stuck his finger in her vagina and then called her a bitch and threatened her and said don’t tell anybody about this . . . [a]nd then brought her back to her bedroom.
“[I]n February 2004 [plaintiff] . . . got [the girl] and brought [her] back into his bedroom and this time had sexual intercourse with her and slammed her up against a wall and used profanities with her again and threatened her again and then brought her back into her bedroom.”

According to Karen, these were Nancy’s direct quotes and she understood that the statements made by defendants were based on their daughter’s allegations. However, she did not believe that her husband had sexually assaulted the child.

Plaintiff adamantly denied that he had sexual contact with defendants’ daughter and responded to these charges by commencing this action for defamation. The theory of the complaint is that, at the meeting and on “numerous occasions” thereafter, defendants falsely and maliciously stated that plaintiff had raped and molested defendants’ daughter, and that the individuals who heard those statements believed that defendants “charge [d] plaintiff with the felony crimes of rape and child molestation.” After depositions were conducted, defendants moved for summary judgment, contending that even if they made the statements that were attributed to them, those utterances were not actionable because they had truthfully relayed their daughter’s accusations and merely expressed their belief in her veracity.

Supreme Court denied defendants’ motion, finding triable issues of fact based on the conflicting testimony of the parties. The Appellate Division reversed and granted summary judgment to defendants (74 AD3d 1283 [2d Dept 2010]). The court concluded that the “alleged statements constituted statements of opinion, and not of fact” (id. at 1284). We granted leave to appeal (15 NY3d 715 [2010]) and now reverse.

Making a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation (see e.g. Geraci v Probst, 15 NY3d 336, 344 [2010]; Foster v Churchill, 87 NY2d 744, 751 [1996]). Generally, only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue (see e.g. Brian v Richardson, 87 NY2d 46, 51 [1995]). A verbal utterance that inaccurately accuses a person of a serious crime can be slander per se (see Liberman v Gelstein, 80 NY2d 429, 435 [1992]).

It is often difficult to distinguish an actionable statement of fact from a protected statement of opinion (see Mann v Abel, 10 NY3d 271, 276 [2008]). This is a task that courts must perform by examining three factors: (1) whether the allegedly defamatory words have a “precise meaning” that is “readily understood”; (2) whether the statement can be proven as true or false; and (3) “whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact” (Brian v Richardson, 87 NY2d at 51 [internal quotation marks omitted]; see Mann v Abel, 10 NY3d at 276; Steinhilber v Alphonse, 68 NY2d at 292).

Even when an accusation involves serious criminal conduct, differentiating between fact and opinion is not necessarily an easy endeavor. At first blush, a statement such as “plaintiff is a thief’ certainly appears capable of being proven true or false. But the overall context in which such words are used may cloud their potentially defamatory nature. As we explained in Gross (82 NY2d at 155), using “thief’ to refer to the intentional taking of another person’s property is a direct factual accusation of criminal conduct that is likely actionable. In that context, the defamatory nature of the statement cannot be immunized by pairing it with “I believe” the person is a thief. But if the word “thief’ is used in the symbolic sense to suggest that someone’s “heart was stolen,” it lacks a criminal connotation and instead conveys “that something other than an objective fact is being asserted” (id.). Context, therefore, is often the key consideration in categorizing a statement as fact or opinion (see generally Immuno AG. v Moor-Jankowski, 77 NY2d 235, 254 [1991]).

Based on the conflicting recollections in this case, it is impossible to decipher exactly what was said by whom and the precise context in which the statements were made. Paul asserted that, for the most part, he could not recall his own statements but that he merely spoke about what his daughter had told him. Nancy similarly testified that the conversation focused on her daughter’s accusations and she acknowledged that someone accused plaintiff of committing sexual assault. Plaintiffs wife, in stark contrast, contended that both defendants characterized her husband as a rapist and child molester, and claimed that Nancy delineated precisely what acts plaintiff engaged in and the nature of the statements that plaintiff made to her daughter.

In light of these factual discrepancies, defendants have not met their burden of demonstrating their entitlement to summary judgment. Assuming that the recollections of plaintiffs wife are accurate, her version of the facts would support the conclusion that defendants may have defamed plaintiff. Unqualified statements attributed to defendants that plaintiff sexually assaulted their underage daughter on two occasions in Vermont, accompanied by specific details of plaintiffs threats and actions during the incidents, tends to weigh the relevant factors in favor of viewing defendants’ alleged communications as actionable statements of fact: (1) the precise meaning of the utterances is that plaintiff raped and molested a child at a specific place during two encounters; (2) the statements can be proven true or false since plaintiff either did or did not commit the acts; and (3) the overall context in which the utterances were made is indicative of factual assertions. This includes Paul’s statement that he would have shot plaintiff if a gun was available, defendants’ belief that their daughter had been sexually assaulted by plaintiff and defendants’ intent to sue plaintiff for what he allegedly did to their daughter. Under these circumstances, a reasonable listener would have understood that defendants intended to label plaintiff as a child rapist. Hence, the statements would be actionable even if they were couched in the form of an opinion (“I think plaintiff sexually assaulted my child”), rather than fact (“plaintiff sexually assaulted my child”) (see Gross, 82 NY2d at 155). And although plaintiffs wife realized that defendants’ purported statements-were derived from what their daughter told them, that is not determinative because “the fact that a particular accusation originated with a different source does not automatically furnish a license for others to repeat or publish it without regard to its accuracy or defamatory character” (Brian v Richardson, 87 NY2d at 54). Consequently, we conclude that defendants’ motion for summary judgment must be denied.

As a final matter, it should be noted that defendants did not argue in their summary judgment motion that their statements were immunized by a qualified privilege. “Generally, a statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned” (Rosenberg v MetLife, Inc., 8 NY3d 359, 365 [2007] [internal quotation marks omitted]; see e.g. Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 445 [2002]; Liberman v Gelstein, 80 NY2d at 437). A communication protected by such a privilege is not actionable unless the plaintiff proves that it was uttered with malice—i.e., “spite or a knowing or reckless disregard of a statement’s falsity” (Rosenberg, 8 NY3d at 365). In the current procedural posture of this appeal, we cannot consider, and do not decide, whether the qualified privilege rule applies in a situation like this arising from the disclosure of sexual assault allegations by the parents of a child victim to the spouse of the accused offender, with whom the parents are acquainted.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

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

Order reversed, etc.

      . Some opinions that are not accompanied by the facts on which they are based may qualify as defamatory under certain circumstances (see Gross v New York Times Co., 82 NY2d 146, 153-154 [1993]; Steinhilber v Alphonse, 68 NY2d 283, 289-290 [1986]).

      . In Brian, the author of an article that appeared on the editorial page of a newspaper stated that he found certain factual claims about a matter of public concern to be credible, while disclosing the basis for that belief. In concluding that this was a communication of opinion (see 87 NY2d at 53), we made clear that a statement does not necessarily cease to be factual simply because the speaker attributes it to a third party (see e.g. Gross, 82 NY2d at 150).