author: ClPARIGK, J.

text:
    [964 NE2d 372, 941 NYS2d 1]
    The People of the State of New York, Respondent, v Corey Gamble, Appellant.
    Argued January 4, 2012;
    decided February 9, 2012

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Margaret E. Knight and Richard M. Greenberg of counsel), for appellant.
    I. Where the trial court deferred to the court officers’ stated policy of sitting in physical contact with Corey Gamble’s chair, thereby preventing Mr. Gamble from having confidential communications with his attorney during the trial, and conveying to the jury that Mr. Gamble was dangerous and violent, he was denied his rights to counsel, due process, and a fair trial. (People v Sloan, 79 NY2d 386; People v Turaine, 78 NY2d 871; People v Mehmedi, 69 NY2d 759; People v Ciaccio, 47 NY2d 431; People v Dokes, 79 NY2d 656; People v Cooper, 307 NY 253; Coplon v United States, 191 F2d 749; People v De Armas, 106 AD2d 659; People v Buchanan, 13 NY3d 1; Holbrook v Flynn, 475 US 560.) II. Where the prosecution’s case focused on Corey Gamble’s motive, Mr. Gamble was denied his right to present a defense when the court precluded evidence that one of the victims was a drug dealer, had recently offered to be a criminal informant, and had once suffered a severe beating, unrelated to Mr. Gamble, inside the same apartment where the homicides occurred, demonstrating that other individuals also possessed a motive to harm one of the victims. (Chambers v Mississippi, 410 US 284; Pointer v Texas, 380 US 400; People v Primo, 96 NY2d 351; People v Moore, 42 NY2d 421; People v Fitzgerald, 156 NY 253; People v Dyes, 122 AD2d 69; People v Rolf, 185 AD2d 656; People v Carver, 183 AD2d 907; People v LaFrance, 182 AD2d 598; People v Carter, 86 AD2d 451.) III. The court abused its discretion by allowing the admission of an overwhelming quantity of evidence related to the history of disputes between Corey Gamble and the victims, and the prejudice from this error was only compounded when the prosecution and its witnesses exceeded the scope of the overly broad Molineux ruling. (People v Molineux, 168 NY 264; People v Ventimiglia, 52 NY2d 350; People v Alvino, 71 NY2d 233; People v Bierenbaum, 301 AD2d 119; People v Giles, 11 NY3d 495; People v Dales, 309 NY 97; People v Resek, 3 NY3d 385; People v Mayrant, 43 NY2d 236; People v Richardson, 222 NY 103; Roldan v Artuz, 78 F Supp 2d 260.) IV In its closing argument, the prosecution impermissibly shifted the burden of proof by arguing that Corey Gamble should have called witnesses to corroborate his testimony. (People v LaPorte, 306 AD2d 93; People v Walters, 251 AD2d 433; People v Tankleff, 49 AD3d 160, 84 NY2d 992; People v Gary, 44 AD3d 416; People v Antommarchi, 80 NY2d 247; United States v Parker, 903 F2d 91; People v Balls, 69 NY2d 641; People v Medina, 53 NY2d 951; People v Calabria, 94 NY2d 519.)

      Corey Gamble, appellant pro se.
    I. Respondent failed to dispute that their entire rebuttal case was premised upon irrelevant and incompetent evidence and counsel was ineffective for failing to raise an objection to have the testimony stricken. (People v Gruden, 42 NY2d 214; Ohio u Roberts, 448 US 56; People v Ely, 68 NY2d 520; People v Baez, 103 AD2d 746; Hicks v Oklahoma, 447 US 343; People v Patterson, 93 NY2d 80; People v Vega, 276 AD2d 414; People v Clarke, 66 AD3d 694; People v De Jesus, 42 NY2d 519; Brookhart v Janis, 384 US 1.) II. Respondent attempts to mislead this Court in its response to counsel’s prejudicial failure to impeach Marvin Ford with his inculpatory prior inconsistent statement. (People v Lewis, 2 NY3d 224; People v Lopez, 56 AD3d 280; People v Rojas, 213 AD2d 56; People v Garcia, 46 AD3d 461; People v Bryce, 88 NY2d 124; People v Vilardi, 76 NY2d 67; Ortega v City of New York, 9 NY3d 69; Kaufman v Quickway, Inc., 14 NY3d 907; People v Nasser, 15 Misc 3d 499; People v Oxley, 64 AD3d 1078.) III. Respondent has not disputed that the two cases are related; as such, defendant’s right to counsel should have attached at the pretrial lineup. (People v Gruden, 42 NY2d 214; People v Smith, 54 NY2d 954; People v Torres, 60 NY2d 119; People v Mitchell, 2 NY3d 272; People v Hawkins, 55 NY2d 474; People v Havelka, 45 NY2d 636; People v Payton, 51 NY2d 169.)

      Robert T. Johnson, District Attorney, Bronx (Hannah E.C. Moore and Joseph N. Ferdenzi of counsel), for respondent.
    I. The Appellate Division correctly found that the placement of the court officers has no impact on defendant’s ability to communicate confidentially with his attorney; moreover, the placement of the court officers did not deprive defendant of a fair trial. (People v Lane, 7 NY3d 888; People v Thomas, 50 NY2d 467; People v Konstantinides, 14 NY3d 1; People v Sloan, 79 NY2d 386; People v Vargas, 88 NY2d 363; Illinois v Allen, 397 US 337; People v Rouse, 79 NY2d 934; People v Palermo, 32 NY2d 222; People v Miller, 184 AD2d 375; People v Stokes, 290 AD2d 71.) II. The Appellate Division properly found that defendant was not denied the right to present a defense. (People v Primo, 96 NY2d 351; Greenfield v People, 85 NY 75; People v Carter, 86 AD2d 451; People v Hudy, 73 NY2d 40; Carmell v Texas, 529 US 513; Crane v Kentucky, 476 US 683; People v Arafet, 13 NY3d 460; People v Crimmins, 36 NY2d 230; People v Geraci, 85 NY2d 359; People v Wachowicz, 22 NY2d 369.) III. The Appellate Division correctly found that the trial court’s Molineux/Ventimiglia ruling was proper and that the prosecutor adhered to the scope of the ruling. (People v Ingram, 71 NY2d 474; People v Alvino, 71 NY2d 233; People v Ventimiglia, 52 NY2d 350; People v Molineux, 168 NY 264; People v Jackson, 39 NY2d 64; People v Dorm, 12 NY3d 16; People v Tosca, 98 NY2d 660; People v Till, 87 NY2d 835; People v Yapor, 308 AD2d 361; People v Berry, 278 AD2d 52.) IV As the Appellate Division found, defendant’s claim that the prosecutor’s conduct during trial deprived him of a fair trial is unpreserved and without merit. (People v Heide, 84 NY2d 943; People v Medina, 53 NY2d 951; People v Romero, 7 NY3d 911; People v Ashwal, 39 NY2d 105; Williams v Brooklyn El. R.R. Co., 126 NY 96; People v Ortiz, 116 AD2d 531; People v Galloway, 54 NY2d 396; People v D’Alessandro, 184 AD2d 114; People v Calabria, 94 NY2d 519; People v Arce, 42 NY2d 179.) V The claims raised in defendant’s pro se supplemental brief are without merit. (People v Hawkins, 55 NY2d 474; People v Hernandez, 70 NY2d 833; People v Mitchell, 2 NY3d 272; People v Schreiner, 77 NY2d 733; People v Roe, 74 NY2d 20; People v Konstantinides, 14 NY3d 1; People v Molineux, 168 NY 264; People v Cohen, 90 NY2d 632; People v Baldi, 54 NY2d 137; People v Caban, 5 NY3d 143.)

      Alan J. Pierce, Syracuse, amicus curiae.
   OPINION OF THE COURT

ClPARIGK, J.

This appeal raises several questions for our review. The principal question we are called upon to determine is whether courtroom seating arrangements wherein court officers stationed themselves directly behind defendant during the course of his trial deprived him of his constitutional right to communicate confidentially with his attorney and prejudicially conveyed to the jury that he was dangerous. We conclude that the positioning of the court officers in this case did not infringe upon defendant’s constitutional right to counsel or deprive him of a fair trial.

The other significant question we are asked to consider is whether Supreme Court abused its discretion when it permitted the People under People v Molineux (168 NY 264 [1901]) to introduce certain evidence of defendant’s uncharged crimes and whether the People’s evidence elicited at trial exceeded the scope of such ruling. We conclude that Supreme Court’s decision to admit this evidence was appropriate.

I.

A Bronx County grand jury charged defendant with three counts of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]) and three counts of murder in the second degree (Penal Law § 125.25 [1]). The indictment alleged that on March 15, 2003, defendant killed Eunice Younger and her two adult children, Ricky Younger and Gloria Watson (the Youngers), by shooting them in the head inside their apartment. Prior to trial, defendant moved to suppress, as relevant here, his identification in a lineup by two eyewitnesses. Defendant contended that counsel represented him on a related matter and that, therefore, law enforcement violated his right to counsel when they conducted a lineup without notifying his attorney. Supreme Court denied the motion, reasoning that “[a] defendant who is not represented on a case for which he is in custody, but who is represented by an attorney on an unrelated case, has no right to the presence of that attorney at a lineup relating to the case in which he is not represented.”

Also before trial, the People moved for the admission of certain uncharged crimes and prior bad acts allegedly committed by defendant, maintaining that the proffered testimony was relevant on the issues of “identity of the perpetrator, intent, motive and background.” According to the People, their theory of the case was “that these homicides were the culmination of approximately a year long series of incidents between the defendant” and the Youngers, defendant’s upstairs neighbors. In support of this theory, the People sought permission to elicit testimony from Cortina Watson, decedent Gloria Watson’s daughter, and Marvin Ford, Gloria’s boyfriend. The gravamen of the proposed testimony would be that defendant assaulted and threatened them and the Youngers on several occasions in the year prior to the shootings.

Following an initial hearing, written submissions by the parties and a subsequent reargument motion on the matter, Supreme Court limited Cortina Watson’s testimony at trial as follows: on the evening of April 13, 2002, 11 months before the shootings, she was inside the Youngers’ apartment with Ricky. At some time during Cortina’s visit, defendant began kicking the door to the family apartment. Cortina answered the door at which time defendant, who was in an agitated state, told her that he was “sick and tired of you people using all the hot water.” Cortina responded by informing defendant that no one in the apartment was utilizing the hot water. Defendant, in turn, threatened to kill her and Ricky. Fearing for their safety, they filed a complaint with the police and received a temporary order of protection forbidding defendant from having any contact with them.

Supreme Court also allowed Marvin Ford to testify, limiting his testimony to the following: on January 18, 2003, less than two months before the shooting, Ford was inside the Youngers’ apartment with Ricky. During Ford’s visit, defendant came to the door and a verbal altercation between Ricky and defendant ensued. Ford overheard defendant threaten to kill Ricky and observed defendant display a knife. After defendant left the premises, Ford saw him from the apartment window. Defendant, again displaying what appeared to be a handgun, shouted to Ford that “I’ve got something for you.” Based on this incident, the police arrested defendant and charged him with criminal contempt and a second order of protection was issued, barring defendant from having any contact with either Ford or Ricky.

Toward the beginning of jury selection, defense counsel objected to the physical proximity of court officers who sat “directly behind the defendant.” She complained that their positioning prevented her from freely communicating with her client and signaled to the prospective jurors that defendant had “to be guarded so closely.” As such, counsel requested that the officers “sit at the rail where their seats are normally positioned.” Supreme Court disagreed with defense counsel’s perception, but informed her that it would ask the officers “to sit back a little further.”

Later that day, defense counsel renewed her objection to the positioning of court officers behind defendant. She argued that, because the court officers have their feet on defendant’s chair, “it is impossible to have a confidential communication with [him].” Supreme Court placed on the record that defendant had been charged with a disciplinary infraction while incarcerated at Hikers Island for allegedly assaulting a correction officer and that this incident was the basis for the heightened security measures—i.e., the placement of the court officers’ toes against the bottom of defendant’s chair. Supreme Court also indicated that there were prior incidents before a different judge where defendant acted aggressively in the courtroom. With respect to defense counsel’s remarks concerning defendant’s constitutional right to confidential communication with his attorney, Supreme Court noted that the court officers were only sitting approximately two or three inches closer to defendant from their normal position at the rail. The court further stated to counsel: “[T]he notion that there is a greater confidentiality in the communications between you when the officers are two inches further away I think is farfetched. You have as much confidentiality as you would have if they were back at the railing ... so I don’t see a difference there.” In any event, Supreme Court offered to arrange opportunities for defendant and counsel to speak in a more private setting. Defense counsel also reiterated her view that the physical proximity of the court officers “has prejudiced the defendant terribly in the eyes of this jury because it telegraphs to them very directly this is a very dangerous man.” Supreme Court rejected this argument, countering that it was “satisfied” that defendant was not prejudiced in the eyes of the jury.

After jury selection, the People presented comprehensive, albeit circumstantial, evidence linking defendant to the shootings. The jury, for example, heard testimony from Monica Killebrew who lived in an apartment opposite the Youngers. On the date of the shootings, at around 4:00 p.m., Killebrew was home when she heard loud banging noises coming from outside her apartment. As she approached her front door, Killebrew testified that the noises she heard sounded like “a fight,” “like people . . . getting thrown up against the wall.” A short time thereafter, Killebrew heard defendant, whose voice she was positive that she recognized, say, “I am tired of you people bothering me.” Immediately thereafter, Killebrew heard a “popping sound” that sounded like a gunshot. Moments later, she heard three more shots. At this point, Killebrew was standing by her apartment window in hysterics, speaking to a woman on the street, when she saw defendant walking out of the building. Killebrew testified that after defendant left, the apartment building was completely still inside and that nobody else entered or exited the building. Killebrew identified defendant in a lineup the following day and in court during the trial.

In addition to Killebrew, two other witnesses who were located at a business adjacent to the apartment building at the time of the shooting testified. They both corroborated Killebrew’s testimony about the timing of the gunshots and identified defendant as the individual who exited the apartment building after the shots were heard. They also confirmed that nobody else entered or exited the building after defendant walked through the front entrance.

Once the police arrived, they discovered the Youngers in their apartment; all three had gunshot wounds to the head, and according to medical evidence, died instantly. During the police investigation, they recovered nine latent fingerprints, one of which conclusively proved to be a print of defendant’s left ring finger.

As noted earlier, the People also elicited background testimony from Cortina Watson and Marvin Ford concerning defendant’s contentious relationship with the Youngers. During Cortina’s cross-examination, defense counsel asked her about an October 2001 incident in which Ricky Younger was the victim of a beating inside his apartment. The People objected to this question on relevance grounds. Defendant proffered that this beating was related to Ricky’s involvement with illegal drug activity and that it was his intention to establish that Ricky had many enemies who had a motive to commit these murders. Supreme Court sustained the objection, reasoning that defense counsel failed to establish a connection between the October 2001 incident and the March 2003 shootings.

At the close of the People’s proof, defendant elected to interpose a defense, testifying on his own behalf and calling numerous other witnesses. Defendant testified that, prior to the shootings, he had several disputes with the Youngers and Marvin Ford mainly because Ricky Younger had been selling drugs outside of defendant’s apartment. Defendant explained that he called the police about once a month not only to complain about the drug selling but also about Ricky slashing the tires on his vehicle and excessive noise coming from the Youngers’ apartment. Although defendant admitted that he had a verbal altercation with the Youngers on April 13, 2002, he disputed Cortina’s version of the events. Defendant stated that the dispute on that day originated when he observed Ricky bending down near the side of his car with a knife. After defendant saw that his driver’s side tire was flat, he confronted Ricky. Defendant denied that he threatened anyone or that he was in possession of a gun.

Defendant’s version of the events that transpired on January 18, 2003 was also different. Defendant testified that at around 11:00 a.m. he left his apartment and noticed that Ricky and Ford stood near his car, drinking a beer. Defendant went back inside and when he returned to his vehicle approximately five minutes later, he observed that there was a broken bottle near his tire and that the tire was leaking air. Defendant explained that he went to the Youngers to confront both Ricky and Ford, but that he did not possess a knife or threaten to kill or stab Ricky. Defendant also maintained that he did not display a handgun to Ford.

With respect to the shootings, defendant denied that he was the perpetrator. In fact, defendant testified that on March 15, 2003, at around 5:00 p.m., he first learned of the shootings and that he was the suspect while watching a television news program at his mother’s house. Defendant stated that he had left his apartment that day in the late morning and, before going to his mother’s house, made a purchase at a RadioShack and filled out a job application at a Home Depot. Defendant also denied setting foot inside the Youngers’ apartment and said that the fingerprint the police had recovered from a window frame therein could not be his.

The jury convicted defendant on one count of first-degree murder and one count of second-degree murder. Supreme Court sentenced defendant to concurrent sentences of life imprisonment without parole and 25 years to life. The Appellate Division unanimously modified the judgment of conviction and sentence to the extent of vacating the DNA databank fee imposed by Supreme Court and, as so modified, affirmed (see People v Gamble, 72 AD3d 544, 545 [1st Dept 2010]). A Judge of this Court granted defendant leave to appeal (15 NY3d 920 [2010]) and we now affirm.

II

We begin our analysis with defendant’s constitutional argument that the positioning of court officers directly behind him during the course of the trial deprived him of his right to communicate confidentially with his attorney. It is well settled that the fundamental right to counsel in a criminal case includes “the right to consult counsel in private, without fear or danger that the People, in a criminal prosecution, will have access to what has been said” (People v Cooper, 307 NY 253, 259 [1954]). “Intrusion upon a client-lawyer conference, whether in the privacy of an office or at the counsel table in court, contravenes our sense of traditional fair play and due process” (id.; see also Coplon v United States, 191 F2d 749, 759 [DC Cir 1951] [the Fifth and Sixth Amendments “guarantee to persons accused of crime the right privately to consult with counsel both before and during trial. This is a fundamental right which cannot be abridged, interfered with, or impinged upon in any manner”]).

In Cooper, we recognized that it is defendant’s burden to establish that confidential communications with his attorney have been compromised (see 307 NY at 260). Here, we conclude that defendant did not meet his burden in showing that the positioning of the court officers directly behind him impeded his ability to converse privately with his attorney. Supreme Court found that the relief sought by defense counsel—a request that the court officers sit in their normal places two inches farther away from defendant—would not have made counsel’s communications with defendant any more confidential, and nothing in the record suggests that the finding was incorrect.

Defendant also maintains that, in any event, the close positioning of the court officers directly behind him prejudiced him in the eyes of the jury in that it conveyed to them that he was dangerous. We reject this contention. It is axiomatic that “[t]rial courts must retain appropriate discretion to control their courtrooms and trial proceedings generally” (People v Vargas, 88 NY2d 363, 377 [1996]). This discretion afforded to trial courts necessarily includes decisions pertaining to courtroom security. As the United States Supreme Court has held, “[i]t is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country” (Illinois v Allen, 397 US 337, 343 [1970]). The Court further observed that “[n]o one formula for maintaining the appropriate courtroom atmosphere will be best in all situations” (id.).

In this case, the record is clear that defendant had been charged with a disciplinary infraction for allegedly assaulting a correction officer at Hikers Island. Supreme Court placed this information on the record and further noted that defendant had acted aggressively in court during the pendency of this case before a different judge. We conclude that these record facts— never disputed by defendant—allowed the trial court in the exercise of its discretion to permit the court officers to sit directly behind defendant with their toes placed on the back of his chair. Nor is there a basis in the record for a finding that such security measure telegraphed to the jury that defendant was a dangerous individual. In that regard, we note that additional security measures sanctioned by Supreme Court were, at most, only minimally intrusive. At no point, for example, was defendant physically restrained in the presence of the jury (see People v Clyde, 18 NY3d 145, 152 [2011] [“the Federal Constitution prohibits the use of physical restraints visible to the jury during a criminal trial, absent a court determination that they are justified by an essential state interest specific to the defendant on trial”] [internal quotation marks, ellipses and citation omitted]). Simply put, defendant’s assertion that the positioning of the court officers deprived him of a fair trial has no merit.

We now turn to the trial court’s Molineux ruling, allowing certain uncharged crimes of defendant into evidence. We have long “held that there are instances when evidence of uncharged crimes may be used to prove guilt of the offense charged” (People v Gillyard, 13 NY3d 351, 355 [2009]). We articulated that such evidence may be admitted in circumstances

“ ‘when [the evidence] 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 others; [or] (5) the identity of the person charged with the commission of the crime on trial’ ” (id., quoting People v Molineux, 168 NY 264, 293 [1901]).

We have repeatedly acknowledged that these categories are not exhaustive, but “merely illustrative” (People v Jackson, 39 NY2d 64, 68 [1976]). Thus, “we established the rule that evidence of defendant’s other crimes is admissible only if probative of some fact at issue other than the defendant’s criminal propensity” (Gillyard, 13 NY3d at 355, citing People v Rojas, 97 NY2d 32, 37-40 [2001]). Of course, “[t]he balancing of probative value against potential prejudice is entrusted to the trial court’s discretion” (Gillyard, 13 NY3d at 355, citing People v Ventimiglia, 52 NY2d 350, 359-360 [1981]).

In our view, Supreme Court exercised sound discretion in permitting Cortina Watson and Marvin Ford to testify about limited incidents of defendant’s uncharged crimes leading to the shootings. While excluding certain testimony that it deemed overly prejudicial, Supreme Court correctly determined that their testimony that defendant had previously threatened to kill them and Ricky Younger was relevant in establishing a motive for the murders and the identity of the perpetrator in this circumstantial evidence case (see People v Dorm, 12 NY3d 16, 19 [2009]). Moreover, the trial court properly opined that the testimony it allowed the People to elicit “provided necessary background information on the nature of the relationship [between defendant and the Youngers] and placed the charged conduct in context” (id.; see e.g. People v O’Gara, 239 AD2d 215, 215 [1st Dept 1997] [“Evidence of defendant’s prior bad acts was properly received . . . which provided background information necessary to explain the increasingly acrimonious relationship between defendant and the victim . . . and which was necessary and highly relevant on the issues of motive and identity”]). Furthermore, our review of the record reveals that the People adhered to the scope of the trial court’s Molineux ruling.

Defendant’s further contention that he was denied the right to present a defense and his argument that Supreme Court erroneously shielded the jury from hearing evidence demonstrating that there were “other potential perpetrators who had a motive to do violence to Ricky” is without merit. Applying the standard articulated in People v Primo (96 NY2d 351, 356-357 [2001]), we agree with the lower courts that defendant failed to establish a nexus between an earlier beating where Ricky Younger had been assaulted and the shooting here. Supreme Court’s determination that this purported third-party culpability evidence would be entirely “speculative” and its subsequent preclusion was a proper exercise of its discretion. That the People introduced evidence establishing defendant’s motive for the shootings does not, as the Appellate Division observed, “open the door to generalized, speculative evidence of possible motives by unidentifiable persons” (Gamble, 72 AD3d at 545).

Finally, contrary to defendant’s assertion, the People did not shift the burden of proof at any point onto defendant to prove his innocence. Further, we have considered defendant’s pro se contentions that his right to counsel attached during the viewing of the lineup and that he received ineffective assistance of counsel and find them to be without merit.

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

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

Order affirmed.

      . Supreme Court precluded Cortina Watson from testifying that defendant had also threatened to kill Eunice Younger and her two children that evening. Supreme Court also prohibited Cortina from testifying that defendant displayed what appeared to be a handgun during the course of the incident.

      . Supreme Court precluded Ford from testifying about an incident that allegedly took place on March 14, 2003, the day before the shootings. On that day, Ford observed that decedent Gloria Watson’s face was swollen and bruised. Watson told Ford that defendant had struck her in the face.

      . During defense counsel’s cross-examination of Killebrew, she asked whether Killebrew had used drugs with Ricky. After Supreme Court sustained the People’s objection to the question, defense counsel renewed her argument that this evidence was relevant to show that Ricky had enemies with a motive to kill him. Supreme Court adhered to its ruling, concluding that the proposed line of questioning was entirely speculative.


source: Caselaw Access Project

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

license: Public Domain

text:
    [963 NE2d 1226, 940 NYS2d 525]
    SPCA of Upstate New York, Inc., et al., Appellants, v American Working Collie Association et al., Respondents.
    Argued January 4, 2012;
    decided February 9, 2012

      POINTS OF COUNSEL

      Stanclift, Ludemann & McMorris, P.C., Glens Falls (Martin J. McGuinness of counsel), for appellants.
    I. Long-arm jurisdiction exists over respondents because they purposefully transacted business in New York and there is a clear connection between the transaction and appellants’ claim for defamation. (Legros v Irving, 38 AD2d 53; Montgomery v Minarcin, 263 AD2d 665; Talbot v Johnson Newspaper Corp., 71 NY2d 827; Best Van Lines, Inc. v Walker, 490 F3d 239; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443; Parke-Bernet Galleries v Franklyn, 26 NY2d 13; Sovik v Healing Network, 244 AD2d 985.) II. It is poor public policy to allow defendant to become immunized from suit in New York simply because the underlying cause of action is for defamation.

      Goldberg Segalla LLP, Albany (Jonathan Bernstein of counsel), for respondents.
    I. Personal jurisdiction in New York over defendants does not exist warranting the Appellate Division’s memorandum and decision to be affirmed. (Montgomery v Minarcin, 263 AD2d 665; Legros v Irving, 38 AD2d 53, 30 NY2d 653; Talbot v Johnson Newspaper Corp., 71 NY2d 827; GTP Leisure Prods, v B-W Footwear Co., 55 AD2d 1009; Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65; Sterling

      Natl. Bank & Trust Co. of N.Y. v Fidelity Mtge. Invs., 510 F2d 870; Henderson v Immigration & Naturalization Serv., 157 F3d 106; Best Van Lines, Inc. v Walker, 490 F3d 239; McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377; Hanson v Denckla, 357 US 235.) II. Defendants’ constitutional rights will be violated if jurisdiction in New York is asserted. (Burger King Corp. v Rudzewicz, 471 US 462; International Shoe Co. v Washington, 326 US 310; Asahi Metal Industry Co. v Superior Court of Cal., Solano Cty., 480 US 102; World-Wide Volkswagen Corp. v Woodson, 444 US 286; Metropolitan Life Ins. Co. v RobertsonCeco Corp., 84 F3d 560; LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210; Legros v Irving, 38 AD2d 53.)
   OPINION OF THE COURT

Chief Judge Lippman.

The question presented in this defamation action is whether plaintiffs established personal jurisdiction over the out-of-state defendants under CPLR 302 (a) (1), New York’s long-arm statute. We find that they did not.

Plaintiff SPCA of Upstate New York is a New York corporation and plaintiff Cathy Cloutier is its executive director. Defendant American Working Collie Association (AWCA) is an Ohio not-for-profit corporation and its president, defendant Jean Levitt, is a Vermont resident. The AWCA is a volunteer-based club that is devoted to promoting the welfare and protection of collies. The organization has members throughout the United States—including 13 in New York at the time of the events herein—but has neither an office nor employees in New York. The AWCA maintains a Web site (www.awca.net), generally containing photographs and anecdotes about particular collies, as well as messages from the AWCA’s president providing collie-related information of interest to the group’s members. This action arises out of allegedly defamatory statements published by defendants on the AWCA Web site.

On October 17, 2007, 23 mistreated dogs (collies and dachshunds) were rescued from a residence in Fort Ann, New York and placed with plaintiff SPCA in its Queensbury, New York facility. Soon thereafter, while in Vermont, defendant Levitt telephoned plaintiff Cloutier to offer the AWCA’s assistance with the subject animals. Subsequently, the AWCA sent the SPCA a donation in the amount of $1,000. Levitt placed a second telephone call from Vermont to advise Cloutier that the AWCA had purchased collars and leashes for the dogs and to make arrangements to deliver those materials.

Levitt visited the SPCA facility on November 7, 2007 for less than one hour, at which time Levitt delivered the leashes and collars and toured the facility. Levitt also wrote a personal check to the SPCA to cover the costs of certain veterinary care. Later that month, Levitt telephoned Cloutier from Vermont for the third and final time and, during that call, they discussed the appropriate care for one of the collies. In addition, on several weekends, volunteers who were affiliated with AWCA assisted in providing care for the dogs. Levitt again visited the SPCA facility on January 5, 2008, for about an hour and a half, to check on the collies.

After Levitt’s return to Vermont, she generated a series of writings addressing the condition of the collies and the treatment being provided by the SPCA. These writings were posted to the AWCA Web site periodically, beginning January 13, 2008. Based on statements contained in the writings, plaintiffs commenced this defamation action in January 2009. Defendants answered, asserting as relevant here, the affirmative defense of lack of personal jurisdiction. Supreme Court denied defendants’ motion to dismiss, finding that personal jurisdiction had been obtained over the defendants under CPLR 302 (a) (1) because Levitt purposefully availed herself of this state’s benefits and protections through her trips to New York and that there was a substantial relationship between her activities here and the allegedly defamatory statements.

The Appellate Division reversed, granted defendants’ motion and dismissed the complaint (74 AD3d 1464 [3d Dept 2010]). The Court determined that, given New York’s “narrow approach” to long-arm jurisdiction where defamation cases are concerned, defendants’ contacts with the state were insufficient to support a finding of personal jurisdiction. This Court granted plaintiffs leave to appeal (15 NY3d 716 [2010]), and we now affirm.

CPLR 302 outlines acts that can form the basis for obtaining personal jurisdiction over non-domiciliaries. Long-arm jurisdiction can be premised on the commission of a tortious act— perpetrated either within the state or outside the state, causing injury within the state—but provides an express statutory exception for “ cause [s] of action for defamation of character arising from the act” (CPLR 302 [a] [2], [3]). Although defamation claims therefore cannot form the basis for “tortious act” jurisdiction, such claims may proceed against non-domiciliaries who transact business within the state and thereby satisfy the requirements of CPLR 302 (a) (1). Defamation claims are accorded separate treatment to reflect the state’s policy of preventing disproportionate restrictions on freedom of expression— though, “[w]here purposeful transactions of business have taken place in New York, it may not be said that subjecting the defendant to this State’s jurisdiction is an ‘unnecessary inhibition on freedom of speech or the press’ ” (Legros v Irving, 38 AD2d 53, 55-56 [1st Dept 1971], Iv dismissed 30 NY2d 653 [1972], quoting Weinstein-Korn-Miller, NY Civ Prac, vol 1, ¶ 302.11).

In order to demonstrate that an individual is transacting business within the meaning of CPLR 302 (a) (1), “there must have been some ‘purposeful activities’ within the State that would justify bringing the nondomiciliary defendant before the New York courts” (McGowan v Smith, 52 NY2d 268, 271 [1981]). Moreover, there must be “some articulable nexus between the business transacted and the cause of action sued upon” (McGowan, 52 NY2d at 272). Phrased differently, there must be “a ‘substantial relationship’ between [the purposeful] activities and the transaction out of which the cause of action arose” (Talbot v Johnson Newspaper Corp., 71 NY2d 827, 829 [1988]; see also Johnson v Ward, 4 NY3d 516, 519 [2005]).

When determining whether the necessary substantial relationship exists between a defendant’s purposeful activities and the transaction giving rise to the defamation cause of action, we have considered whether the relationship between the activities and the allegedly offending statement is too diluted (see Talbot, 71 NY2d at 829). Certain types of conduct will plainly satisfy the required nexus (see e.g. Legros, 38 AD2d at 56 [where a book containing allegedly defamatory statements was researched and printed in New York and where the publishing contract was negotiated and executed in this state, the cause of action was deemed to arise out of the transaction]; Montgomery v Minarcin, 263 AD2d 665, 667-668 [3d Dept 1999] [an allegedly defamatory television news report that was researched (over a six-week period), written, produced and broadcast in New York was sufficient to establish the transaction of business within the state]). To the contrary, where the contacts are more circumscribed and not directly related to the defamatory statement, defendants have prevailed (see e.g. Talbot, 71 NY2d at 829 [defendant daughter’s attendance at a New York college over two years prior to the allegedly defamatory statements made by her defendant father, relating a description of certain conduct observed by the daughter while a student in New York, was insufficient to establish the required nexus between any purposeful activities in this state and the cause of action at issue]; Copp v Ramirez, 62 AD3d 23 [1st Dept 2009], Iv denied 12 NY3d 711 [2009] [no personal jurisdiction over non-domiciliaries who made allegedly defamatory statements in New Mexico to New York reporters from NBC’s Dateline program three years after each spent 60 hours or less at Ground Zero for purposes of producing a potential documentary]).

Here, defendants’ activities in New York were quite limited. Levitt’s three phone calls and two short visits—totaling less than three hours—in addition to the donation of cash and leashes, do not constitute purposeful activities related to the asserted cause of action that would justify bringing her before the New York courts. Moreover, it is of importance that the statements were not written in or directed to New York. While they were posted on a medium that was accessible in this state, the statements were equally accessible in any other jurisdiction.

Further, there is no substantial relationship between the allegedly defamatory statements and defendants’ New York activities. Levitt did not visit New York in order to conduct research, gather information or otherwise generate material to publish on the group’s Web site. Instead, defendants engaged in limited activity within the state in order to help provide financial and medical assistance for the dogs. The alleged mistreatment was observed during the course of those two brief visits but written about after Levitt returned to Vermont. The AWCA neither placed the dogs with plaintiffs in New York nor complained of its volunteers’ treatment by plaintiffs, either one of which might well entail a sufficiently substantial relationship between the allegedly defamatory statements and defendants’ New York activities as to warrant a finding of long-arm jurisdiction. The connection here is too tangential to support the exercise of personal jurisdiction over defendants.

As the Second Circuit has observed, “New York courts construe ‘transacts any business within the state’ more narrowly in defamation cases than they do in the context of other sorts of litigation” (Best Van Lines, Inc. v Walker, 490 F3d 239, 248 [2d Cir 2007]). Through CPLR 302, the Legislature has manifested its intention to treat the tort of defamation differently from other causes of action and we believe that, as a result, particular care must be taken to make certain that nondomiciliaries are not haled into court in a manner that potentially chills free speech without an appropriate showing that they purposefully transacted business here and that the proper nexus exists between the transaction and the defamatory statements at issue.

In light of the foregoing, it is unnecessary to address defendants’ constitutional argument.

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

Pigott, J. (dissenting).

I respectfully dissent because, in my view, the American Working Collie Association (AWCA) and its president, Jean Levitt, engaged in “purposeful activities” in New York and there was a “substantial relationship” between those activities and the defamation causes of action lodged by the SPCA of Upstate New York, Inc. (SPCA) and its executive director, Cathy Cloutier.

Under CPLR 302 (a) (1)—the jurisdictional basis upon which the SPCA and Cloutier rely—long-arm jurisdiction over a non-domiciliary exists where a defendant transacts business in New York and the claim asserted arises from that transaction (see Johnson v Ward, 4 NY3d 516, 519 [2005]). “It is a ‘single act statute’ and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]).

The majority classifies activities of AWCA and Levitt as being “quite limited” (majority op at 405), but the record is littered with instances where the AWCA—whose express mission is the promotion of “the well being of collies”—“purposefully avail[ed] itself of the privilege of conducting activities within [New York]” (Ehrenfeld v Bin Mahfouz, 9 NY3d 501, 508 [2007] [citations omitted]), such that it “should reasonably . . . expect[ ] to defend its actions” here (Deutsche Bank Sec., Inc. v Montana Bd. of lnvs., 7 NY3d 65, 71 [2006]).

Even construing CPLR 302 (a) (1) “more narrowly in defamation cases” (Best Van Lines, Inc. v Walker, 490 F3d 239, 248 [2d Cir 2007]), the facts here certainly meet the standard. Levitt, upon learning that 23 collies and dachshunds had been rescued from a home in Fort Ann, New York, initiated telephone contact with the SPCA and “offered” AWCA’s “services,” which included the donations of collars and leashes, along with a check from the AWCA for $1,000. When the collars and leashes arrived, Levitt contacted Cloutier a second time and, during that telephone conversation, agreed to meet with Cloutier to facilitate the delivery of those items. At this first New York meeting, Levitt again offered AWCA’s assistance and wrote a personal check to cover veterinary costs of the rescued dogs. Shortly after that visit, Levitt telephoned the SPCA to discuss arrangements she had made to send one of the rescued collies to a rehabilitation center. Nearly two months later, on January 5, 2008, Levitt visited the SPCA facility “to check on the care that was being given by the SPCA to the [rescued dogs].” In addition to these activities, the AWCA, over eight weekends, sent members and volunteers to the SPCA to assist in exercising the dogs and cleaning their crates. That Levitt’s visits may have been brief is irrelevant; the AWCA conducted a significant number of “purposeful activities” in New York, such that they could hardly be classified as “quite limited,” particularly in light of the monies and items donated and the services provided.

Nor can it be said that there was no “substantial relationship” between these “purposeful activities” and Levitt’s alleged defamatory statements. Of significance is the fact that the first alleged defamatory comment was posted by Levitt on January 13, 2008, a week after her second visit to the SPCA, detailing Levitt’s observations during the second visit which, according to the post, was precipitated by complaints made to her by AWCA volunteers about the condition of the SPCA facility. Moreover, each of the alleged defamatory posts addressed the conditions of the rescued dogs in New York, and the inference can be drawn from the complaint that Levitt’s purpose for going to New York (and for sending volunteers to assist at the SPCA) was to garner attention for the plight of these rescued dogs in order to promote their well being. Finally, several of the alleged defamatory posts reference accounts given by AWCA volunteers to Levitt concerning the conditions of the SPCA facility. For an organization whose “purpose ... is to promote the well being of collies,” it cannot reasonably be said that there was no nexus between AW-CA’s purposeful activities and the alleged defamatory comments.

Finally, the majority’s “free speech” concern is illusory in the context of this case. CPLR 302 (a) (2) and (3), long-arm provisions that address tortious acts committed by a defendant within the state, and tortious acts committed out of state but cause injury in New York, respectively, exclude defamation claims from their reach. CPLR 302 (a) (1) does not contain such an exception, and for good reason: “There is a clear distinction between a situation where the only act which occurred in New York was the mere utterance of the libelous material and on the other hand, a situation where purposeful business transactions have taken place in New York giving rise to the cause of action” (Legros v Irving, 38 AD2d 53, 55 [1st Dept 1971]). In the latter case, “it may not be said that subjecting the defendant to this State’s jurisdiction is an ‘unnecessary inhibition on freedom of speech or the press’ ” (id. at 55-56). So long as a plaintiff can establish purposeful activities on the part of the defendant and a substantial relationship between those activities and the defamation claim, there is little danger of chilling free speech through the exercise of long-arm jurisdiction.

Judges Cipabick, Read and Jones concur with Chief Judge Lippman; Judge Pigott dissents in a separate opinion in which Judges Gbaffeo and Smith concur.

Order affirmed, with costs.


author:
Graffeo, J.
      Read, J. (dissenting in part).

text:
    [964 NE2d 379, 941 NYS2d 8]
    The People of the State of New York, Respondent-Appellant, v Santos Quinto, Appellant-Respondent.
    Argued January 5, 2012;
    decided February 9, 2012

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Anna Pervukhin and Lynn W.L. Fahey of counsel), for appellant-respondent.
    The trial court properly dismissed the indictment as time-barred by the statute of limitations. (United States v Lovasco, 431 US 783; United States v Marion, 404 US 307; Railroad Telegraphers v Railway Express Agency, Inc., 321 US 342; Stogner v California, 539 US 607; Toussie v United States, 397 US 112; United States v Eliopoulos, 45 F Supp 777; United States v Habig, 390 US 222; United States v Scharton, 285 US 518; Waters v United States, 328 F2d 739; United States v Raymond, 700 F Supp 2d 142.)

      Charles J. Hynes, District Attorney, Brooklyn (Seth M. Lieberman and Leonard Joblove of counsel), for respondent-appellant.
    I. The Appellate Division correctly reversed the Supreme Court’s dismissal of the counts in the indictment that charge sexual offenses. (People v Seda, 93 NY2d 307; People v Hammons, 7 Misc 3d 1028[A], 2005 NY Slip Op 50794[U]; People v Kisina, 14 NY3d 153; People v Gilmour, 98 NY2d 126; Matter of Duell v Condon, 84 NY2d 773; People v Coe, 71 NY2d 852; People v White, 73 NY2d 468, 493 US 859; People v Eulo, 63 NY2d 341; Matter of MERSCORP, Inc. v Romaine, 8 NY3d 90; Matter of

      North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745.) II. The Appellate Division erred in affirming the Supreme Court’s dismissal of the counts of the indictment charging non-sexual offenses. (People v Seda, 93 NY2d 307; People v Parilla, 33 AD3d 363, 8 NY3d 654; People v Jones, 299 AD2d 283; People v Jordan, 43 AD3d 1076.)
   OPINION OF THE COURT

Graffeo, J.

This case calls upon us to consider the type of information that qualifies as a report of a sex crime against a child that triggers the commencement of the statute of limitations under CPL 30.10 (3) (f).

I

In New York, although class A felonies and four specified class B felony sex offenses have no limitations period (see CPL 30.10 [2] [a]), all other felonies are covered by a five-year statute of limitations (see CPL 30.10 [2] [b]). A two-year window applies to misdemeanors (see CPL 30.10 [2] [c]) and petty offenses must be prosecuted within one year (see CPL 30.10 [2] [d]).

For those crimes governed by a statute of limitations, the general rule is that the time period commences when a criminal offense is committed (see CPL 30.10 [2]). By the mid-1990s, there was a widespread recognition that the strictures of the limitations periods pertaining to sex offenses against children presented unique difficulties because many child victims are hesitant or fearful of disclosing such crimes, especially when the sexual abuse is committed by a family member or an individual in the child’s household. In response to these concerns, new laws adding tolling provisions to the statutes of limitations for sexual offenses against children were enacted in 1996 as part of a “major step” (Letter from President of Borough of Queens, June 5, 1996, Bill Jacket, L 1996, ch 122, at 22) toward “ensuring] that the law provides the highest level of protection possible to these most vulnerable victims” (Letter from Mayor of City of NY, June 5, 1996, Bill Jacket, L 1996, ch 122, at 28). These provisions were adopted based on the Legislature’s recognition that

“child-victims of sex offenses cannot fully appreciate the crimes committed against them until they reach maturity; many child-victims are victimized by parents or other persons with whom they have a close relationship, and cannot reasonably be expected to report these crimes while they remain under the sway of their abusers” (Governor’s Approval Mem, Bill Jacket, L 1996, ch 122, at 13, 1996 McKinney’s Session Laws of NY, at 1864; see also Assembly Mem in Support, 1996 McKinney’s Session Laws of NY, at 2085).

CPL 30.10 (3) (f) was a major component of the legislative package. It established that the statute of limitations in a prosecution of a sex offense (other than those that are not subject to any limitations period) committed against a minor does not begin to run “until the child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier” (CPL 30.10 [3] [f]). Delaying the commencement of the relevant limitations period until the age of maturity was intended to “increase the likelihood that young adults, recently freed from a position of dependency, will disclose the offenses committed against them in order to seek redress through the criminal justice system” and that this would “also improve opportunities for preventing recurrences of the conduct by the perpetrator” (Letter from Council on Children and Families, June 17, 1996, Bill Jacket, L 1996, ch 122, at 18). Although majority age replaced the commission of the crime date as the general starting point for the statute of limitations, a statutory exception starts the clock running sooner. The limitations period is triggered if “the offense is reported” to the police or to the central register for child abuse. The scope of CPL 30.10 (3) (f) is the central focus of this appeal; more particularly, what constitutes a report to law enforcement for statute of limitations purposes?

II

The child at issue in this case, whom we refer to as Jane, was 14 years old when she underwent a medical examination in November 2002 that revealed she was 12 weeks pregnant, with a conception date in August of that year. At first, Jane denied that she had been sexually active or that she was being sexually abused at home. She later claimed that she had been raped in August 2002 at school by a classmate.

Jane eventually told the investigating police officers that she had consensual, unprotected intercourse with a 14-year-old boy. She explained that she lied about being raped because she did not want her parents to know that she was having sex. After she gave the police a written retraction of the rape accusation, the case was closed.

Jane turned 18 years of age in January 2006. Over a year later, when she was 19 years old, Jane informed the police that she had been sexually assaulted years earlier by her step-grandfather, defendant Santos Quinto. Based on this disclosure, in December 2007, defendant was charged in a felony complaint with rape and related offenses.

Jane subsequently testified before a grand jury that defendant had raped her on three different occasions in 2002 in the Brooklyn home where they resided: (1) once between May 2002 and the end of June 2002; (2) once between July 2002 and the end of August 2002; and (3) once during the month of September 2002. On at least one of those occasions, defendant purportedly threatened to rape Jane’s sister if she did not submit to intercourse with him. Jane claimed that she told her grandmother (defendant’s wife) about these incidents but her grandmother did not believe her. She also explained that she had kept the sexual assaults and pregnancy a secret from everyone because defendant warned her not to say anything and she was afraid of him.

The grand jury indicted defendant for numerous offenses grouped into the three distinct time periods:

1. For defendant’s alleged conduct between May 1, 2002 and June 30, 2002, he was charged with: rape in the second degree (Penal Law § 130.30 [1] [a class D felony]); sexual misconduct (Penal Law § 130.20 [1] [a class A misdemeanor]); endangering the welfare of a child (Penal Law § 260.10 [1] [a class A misdemeanor]); two counts of sexual abuse in the third degree (Penal Law § 130.55 [a class B misdemeanor]); and harassment in the second degree (Penal Law § 240.26 [1] [a violation]).

2. With respect to his actions that purportedly occurred between July 1, 2002 and August 31, 2002, defendant was indicted for: rape in the second degree; rape in the third degree (Penal Law § 130.25 [3] [a class E felony]); sexual misconduct; menacing in the third degree (Penal Law § 120.15 [a class B misdemeanor]); sexual abuse in the third degree; harassment in the second degree; and endangering the welfare of a child.

3. Finally, for the period from September 1, 2002 to September 30, 2002, defendant was charged with rape in the second degree; sexual misconduct; harassment in the second degree; and endangering the welfare of a child.

Thus, defendant was cumulatively indicted for three counts of second-degree rape; one count of third-degree rape; three counts of sexual misconduct; one count of endangering the welfare of a child; three counts of third-degree sexual abuse; one count of third-degree menacing; and three counts of second-degree harassment. He moved to dismiss the indictment in its entirety, contending that the statutes of limitations for all of the charged offenses had expired. Defendant asserted that the limitations periods began to run under CPL 30.10 (3) (f) when Jane informed the police in November 2002 that she had been raped by a classmate. Based on that commencement date, defendant argued that the statutes of limitations expired no later than November 2007 and, therefore, the charges against him were untimely as they were not initiated until December 2007.

Supreme Court agreed with defendant and dismissed the indictment, concluding that Jane had “reported” the crimes to the police in November 2002, at which time the limitations periods for the offenses were triggered pursuant to CPL 30.10 (3) (f). The court also held that another statutory toll that applies if a defendant’s whereabouts are “continuously unknown and continuously unascertainable by the exercise of reasonable diligence” (see CPL 30.10 [4] [a] [ii]) was not available in this situation because the police had not conducted the investigation with due diligence.

Upon the People’s appeal, the Appellate Division modified by reinstating the felony and misdemeanor sex offenses (77 AD3d 76 [2d Dept 2010]). The court determined that Jane had not made a “report” related to defendant’s alleged sex crimes in November 2002, which meant that the limitations periods for the sex offenses did not begin to run until Jane turned 18 in January 2006. Applying the CPL 30.10 (3) (f) tolling provision, the Appellate Division held that the commencement of the action in December 2007 was timely since the two-year statute of limitations for the misdemeanor sex offenses did not expire until January 2008, and the five-year period for the felony sex offenses did not expire until January 2011. With regard to the non-sex offenses, however, the Appellate Division ruled that they were barred because the statutes of limitations for those offenses had expired and the “continuously unknown and continuously unascertainable” whereabouts tolling provision in CPL 30.10 (4) (a) (ii) was not applicable under the facts presented.

A Judge of this Court granted leave to both parties (15 NY3d 923 [2010]) and we now affirm.

III

The precise issue in this case is whether the information that Jane disclosed to the police on November 8, 2002 was a “report[ ]” to the authorities that was sufficient to bar the availability of the tolling provision in CPL 30.10 (3) (f) in connection with the indictment against defendant. He contends that Jane’s revelation that she became pregnant in August 2002 as a result of being raped by a classmate at school qualifies as a “report” under the statute because the police were placed on notice at that time of a potential sex crime against a minor, which required an investigation. Therefore, defendant asserts that the initial November 2002 “report” encompassed not just the sexual act that led to the pregnancy, but all of the crimes defendant allegedly committed during the three time periods charged in the indictment. And, if the statutory toll does not apply, the criminal action against him was not timely commenced and he would be entitled to dismissal of the indictment.

We disagree. To begin, the text of CPL 30.10 (3) (f) compels us to reject defendant’s argument that Jane’s early statements to the police encompass all three of the time periods designated in the indictment. The statute specifically refers to a report of “the offense” (emphasis added), not “any offense” (see State v Hutchison, 176 Or App 363, 367-368, 31 P3d 1123, 1125 [Ct App 2001]; State v Whittington, 144 NM 85, 89, 183 P3d 970, 974 [Ct App 2008]). The only purported crime that Jane discussed with the police in November 2002 was an alleged August 2002 rape by a classmate. Jane did not mention any other sexual conduct occurring either before or after the alleged incident. Hence, the police had no reason to believe that Jane was subjected to any criminal conduct during the first and third time periods charged in the indictment (May to June 2002 and September 2002, respectively). As a result, the statutes of limitations did not commence on the initial disclosure date— November 8, 2002—for any of the sex offenses within those two time frames. Rather, the limitations periods for those crimes began to run when Jane turned 18 years old in January 2006. Hence, the Appellate Division correctly reinstated those counts of the indictment because the criminal action was commenced in December 2007—within the two- and five-year statutes of limitations.

We next turn to the question of whether Jane’s disclosure to the police in November 2002 constituted a “report” requiring dismissal of the sex offenses occurring during the second time period identified in the indictment—July 1, 2002 to August 31, 2002. CPL 30.10 does not define the word “reported” so we must apply its ordinary and natural meaning (see e.g. People v Versaggi, 83 NY2d 123, 129 [1994]). “Report” is usually defined as describing or giving an account of something (see Webster’s Third New International Dictionary, Unabridged [Merriam-Webster 2012], available at http ¡//unabridged.merriamwebster.com). As we have explained, the term “the offense” refers to a discrete criminal act or series of acts that satisfies the elements of a particular penal statute (see e.g. State v Hutchison, 176 Or App at 367-368, 31 P3d at 1125). Combining these definitions, the phrase “the offense is reported” as used in CPL 30.10 (3) (f) would mean a communication that, at a minimum, describes the offender’s criminal conduct and the particular harm that was inflicted on the victim. Information of this nature provides the police with actual notice that a specific criminal offense has occurred, allowing them to conduct a prompt investigation (see generally State v Green, 108 P3d 710, 721 [Utah 2005]; State v Harberts, 198 Or App 546, 559-560, 108 P3d 1201, 1209 [Ct App 2005], review denied 341 Or 80, 136 P3d 1123 [2006]).

Considered in this manner, the information that Jane provided to the police in November 2002 certainly was a “report” but the operative question is, a report of what? The offense she described was a rape by a classmate in a first-floor bathroom at their school in August 2002, not the forcible intercourse and sexual molestation accusations made later against her step-grandfather. The information conveyed did not provide a reasonable basis for the authorities to suspect that Jane had been sexually assaulted at home by a relative in July or August 2002. Indeed, inquiries prompted by Jane’s pregnancy apparently caused her to unequivocally deny that she was being sexually abused by a family member. The “report” provision triggering the five- and two-year statutes of limitations for sex offenses under CPL 30.10 (3) (f) would have applied only to the incident that was directly derived from the information obtained from Jane—the manner, time and place that she was supposedly sexually assaulted. Since no information linked defendant to the circumstances of the reported crime, we hold that the People were entitled to apply CPL 30.10 (3) (f) and, contrary to the dissent’s conclusion, the statutes of limitations for the indicted sex offenses in the second charged time period did not commence until Jane became 18 years of age.

In our view, this meaning of the phrase “the offense is reported” is consistent with the legislative history and purpose of CPL 30.10 (3) (f). The statute was based on a societal acknowledgment that victims of childhood sexual abuse who do not (or, indeed, who cannot) disclose such acts while they are minors should be given a reasonable period of time after becoming adults to divulge the abuse they suffered. Based on the ordinary meaning of the terms used in CPL 30.10 (3) (f), the legislative history of the statute and its overarching purpose, it is clear that the drafters established the age of 18 as the operative date of the limitations periods unless the police or statewide abuse register receive earlier actual notice that a child has been sexually victimized. We therefore believe that the extension of the limitations periods for sex crimes against children under CPL 30.10 (3) (f) is best accomplished by recognizing that the reporting requirement should be interpreted to cover only the specific criminal acts that are disclosed in a communication. Consequently, we hold that the triggering “report” required under the statutory exception refers to a communication that, at a minimum, describes the offender’s alleged criminal conduct and the harm inflicted on the victim.

In sum, the information Jane shared with the police in November 2002 did not activate the statutes of limitations under CPL 30.10 (3) (f) because she neither identified defendant as the perpetrator nor reported or revealed any of the sex offenses charged in the indictment. Under these facts, the statutes of limitations for the indicted sex crimes did not begin to run until Jane reached 18 years of age in January 2006. The charged sex offenses therefore are not time-barred.

IV

Next, because defendant was also charged with non-sexual offenses not covered by CPL 30.10 (3) (f), we address the timeliness of those charges and the applicability of another tolling provision—CPL 30.10 (4) (a) (ii)—which may apply to any crime subject to a limitations period. It excludes any periods of time following the commission of an offense if “the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence.” We have explained that this statute covers cases where the police are unable to identify the perpetrator of a crime despite the exercise of reasonable diligence or have identified the perpetrator but cannot find him after a diligent investigation (see e.g. People v Seda, 93 NY2d 307, 311 [1999]). In both scenarios, police knowledge that a crime was committed is a necessary prerequisite to the statute’s application (see People v Jordan, 43 AD3d 1076, 1077 [2d Dept 2007]). Subdivision (4) (a) (ii) therefore operates in a manner that is quite different than subdivision (3) (f)—it excludes time only if the police are aware of a particular crime, whereas subdivision (3) (f) stops the limitations clock if the police do not know that a child has been the victim of a sex offense.

Because the police did not learn about the non-sex crimes charged in the indictment until Jane revealed her allegations in December 2007, we conclude that CPL 30.10 (4) (a) (ii) did not toll the time between the alleged commission of the offenses and Jane’s disclosure. Consequently, the one- and two-year limitations periods that apply to the indictment’s non-sexual misdemeanors and petty offenses began to run when those crimes purportedly happened in 2002, hence the timeliness for prosecution of those crimes expired in 2003 and 2004, respectively, well before the accusatory instrument was issued in this case. We agree with the Appellate Division that the non-sexual misdemeanors and petty offenses must be dismissed.

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

Read, J. (dissenting in part).

In my view, an “offense” was “reported to a law enforcement agency” within the meaning of CPL 30.10 (3) (f) when a social worker notified the police in November 2002 that 14-year-old Jane, who was 12 weeks pregnant at the time, claimed to have been raped and impregnated by a fellow student. As a result, the second count of the indictment, which charges defendant Santos Quinto with the crime of second-degree rape during the time period of July 1, 2002 to August 31, 2002, is time-barred. I agree with the majority that the statute of limitations has not expired for the first and third counts, which charge defendant with second-degree rape at other times.

Section 30.10 (3) (f) extends the time period for commencing a prosecution for certain sex crimes against children until either “the child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier.” The majority stresses that the Legislature adopted this statute to insure that “victims of childhood sexual abuse who do not (or, indeed, who cannot) disclose such acts while they are minors [are] given a reasonable period of time after becoming adults to divulge the abuse they suffered” (majority op at 418). This is an undeniably accurate but incomplete explanation for section 30.10 (3) (f). After all, if the Legislature’s only goal had been to give child victims of sexual abuse more time to seek redress, there would be no reporting exception at all: the statute would simply call for the period of limitations to begin at the victim’s majority, the approach taken by many other states (see e.g. Haw Rev Stat § 701-108 [6] [c] [period of limitations in child sex abuse case begins to run when victim turns 18]; Mo Rev Stat § 556.037 [same]; Mont Code Ann § 45-1-205 [1] [b], [c] [same]; Tenn Code Ann § 40-2-101 [h], [i] [same]).

The obvious aim of the reporting exception is to prevent unduly delayed prosecutions for acts of child sexual abuse. The possibility of an erroneous conviction is minimized when a prosecution occurs while evidence is still fresh. Old claims are harder to defend against because evidence may be lost, memories may fade, witnesses may disappear. And the state, as well as defendants, has an important interest in reducing the risk of false prosecutions—a persistent worry in cases of sexual abuse, which so often devolve into a contest of “he said, she said.”

The majority’s interpretation of section 30.10 (3) (f), though, essentially writes the reporting exception out of the statute.

Jane was discovered to be pregnant during a visit to a health clinic in November 2002. She first denied being sexually active or having been sexually abused at home; she then claimed that she was forcibly raped by a classmate whose voice she recognized. This allegation prompted a social worker at the clinic to contact the police. Jane repeated her account to two detectives, by then accusing a classmate by name, until confronted with “inconsistencies” (unspecified in the record) in her story. She then retracted the rape accusation against her fellow student, saying that her pregnancy was instead due to unprotected consensual sex with him. The police believed this explanation—a circumstance I would expect defense counsel to explore fully if this matter goes to trial—and so investigated no further. The police report that had been filed was withdrawn.

This is not a case, then, where some general allegation of child sexual abuse was reported to the police in 2002. Rather, a specific offense—a rape causing a pregnancy—occurring at a specific time—August 2002—was reported. After investigation, the police concluded that no crime had been committed. If Jane’s subsequent allegations prove to be true, this was a tragic mistake because she was allowed to remain in an abusive home for another five years.

I do not fault the police for accepting Jane’s explanation of consensual sex with a fellow student. Unfortunately, this version of the cause of her pregnancy, even though she was only 14 years old, is plausible. Additionally, the police knew that Jane did not come forward willingly—her hand was forced by the sudden discovery at the health clinic of her pregnancy. If the reporting exception in section 30.10 (3) (f) has any meaning, though, the reports made to the police by the social worker and Jane are surely specific enough to qualify. Otherwise, the only “report” sufficient to start the clock running under this provision is one where the police, after investigating a specific allegation of child sexual abuse, proceed to indict someone. This cannot be what the Legislature had in mind. Rather, the exception was intended to foreclose future prosecutions of anyone where the police, having received a specific allegation of sexual abuse of a minor, elect, for whatever reason, not to pursue the matter.

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

Order affirmed.

      . CPL 30.10 (4) (a) (ii) specifies that, for all criminal offenses, the calculation of the amount of time that has elapsed since the offense was committed shall not include “[a]ny period . . . during which . . . the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence” provided, however, that the applicable limitations period can be extended by no more than five years.

      . New York is not the only state that has a reporting exception for sex offenses against children (see e.g. Ark Code Ann § 5-1-109 [a] [2]; Cal Penal Code § 803 [f] [1]; Fla Stat Ann § 775.15 [13] [a]; Ga Code Ann § 17-3-2.1; Mass Gen Laws Ann ch 277, § 63; Minn Stat Ann § 628.26 [e]; ND Cent Code Ann § 29-04-03.1; NM Stat Ann § 30-1-9.1; Or Rev Stat Ann § 131.125 [2]; Vt Stat Ann tit 13, § 4501 [c]; see generally Conn Gen Stat Ann § 54-193a [using a “notification” requirement]; State v Hensley, 59 Ohio St 3d 136, 140, 571 NE2d 711, 715 [1991] [statutes of limitations tolled until a person with statutory duty to report child abuse or neglect has knowledge of both the act and criminal nature of the act]).