author: Rivera, J. Pigott, J.

text:
    [49 NE3d 1143, 29 NYS3d 851]
    The People of the State of New York, Appellant, v Keith Johnson, Respondent.
    Argued February 9, 2016;
    decided March 29, 2016

      Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy and Joseph N. Ferdenzi of counsel), for appellant.

      Robert S. Dean, Center for Appellate Litigation, New York City {David J. Klem of counsel), for respondent.
   OPINION OF THE COURT

Rivera, J.

On this appeal by the People, we conclude that a defendant’s Sixth Amendment right of confrontation as recognized under Bruton v United States (391 US 123 [1968]) and its progeny is violated when a court admits into evidence, at a joint trial, a non-testifying codefendant’s out-of-court statements which establish an element of the charged crime, and independently and powerfully incriminate defendant in the underlying criminal conduct. In this prosecution on an acting-in-concert theory, the codefendant’s statements were facially incriminating as to defendant because they placed him in joint possession of the proceeds of the robbery with which he was charged, and connected defendant to drug-related activity. Given that defendant claimed the People’s law enforcement witnesses fabricated testimony to inculpate him in crimes that never occurred, and that the People’s evidence was marred by materially significant inconsistencies, the court’s admission of co-defendant’s statements, which confirmed possession of the drug money, was not harmless error. Therefore, we affirm the Appellate Division order reversing the judgment and remanding for a new trial.

I.

Defendant Keith Johnson was tried jointly on various charges of acting in concert with codefendant Joe Rushing related to the theft of drug-buy money from an undercover police officer. According to the People’s trial evidence, an undercover police officer — referred to as UC44 — approached defendant on a public street late one night seeking to purchase drugs. There was testimony at trial that UC44 was working as part of a nine-person field team, formed to conduct “buy and bust” operations whereby undercover officers worked a neighborhood to identify and arrest suspected drug dealers from whom they would attempt to purchase drugs. Defendant was standing across from a check cashing business when UC44 walked up to him and asked about purchasing crack cocaine. In response to defendant’s question whether UC44 was a “cop,” UC44 lifted his shirt to show he was not wearing a wire. In fact, UC44 had a concealed radio transmitter on his person which relayed his conversations with defendant to other undercover members of the field team.

Defendant told UC44 to follow him and led UC44 around the corner to a car parked with the engine running. Codefendant was in the driver’s seat as defendant entered and sat down on the front passenger side. Once in the car defendant told UC44 to give him the money, and UC44 replied “[n]o, give me the stuff.” Codefendant told UC44 that he wanted to count the money and so UC44 reached over and handed codefendant $30 in prerecorded drug-buy money. As he leaned back to get the drugs from defendant, defendant pulled out a pistol. UC44 stepped back, raised his hands, and exclaimed “gun, gun, gun” to alert the other undercover officers who were listening in.

As codefendant drove away, defendant pointed the gun out the window at UC44. The undercover officer then shot at the car through the rear passenger window, striking defendant in the shoulder. The officers from the field team pursued and caught up with the codefendants at a traffic light. Guns drawn, they approached the car and took defendant and codefendant into custody. Defendant was bleeding and subsequently taken to the hospital. During the search of the car the officers recovered a gun from the floor between the passenger’s side door and seat. During the search of codefendant’s person the officers found the $30 in premarked bills in his pants pocket.

After testimony from several of the People’s witnesses, including members of the field team and UC44, the People introduced a redacted version of codefendant’s statements to the grand jury. The court had previously deemed the statements admissible over defendant’s objections and after denying defense counsel’s request for severance. Prior to introduction of the statements the court instructed the jurors that they could only consider the grand jury testimony as to codefendant, and that this evidence was not applicable to or binding upon defendant.

In the grand jury statements read to the jury, codefendant asserted that on the evening of his arrest, he and defendant were driving around searching for defendant’s stolen car. Co-defendant parked so defendant could get something to eat, and he waited in the car, listening to music. Immediately after defendant returned to the car, someone approached and, holding money out, started asking about “the stuff.” Codefendant said he did not see anyone walking with defendant, and never saw a gun in his car.

Codefendant further stated that after the man approached, he dropped money into the car. At that point codefendant determined it was time to leave, and began driving away “[b]ecause that [sic] something I didn’t want to get myself in because I’ve been involved in situations like that. When I saw that, I knew it was time for me to leave.” As he pulled away, the man fired at the car through the back window and wounded defendant. Codefendant also asserted that police officers appeared at a red light where he was stopped soon after, pulled him out of the car, and started beating him up before they arrested him and defendant. In response to questioning from the Assistant District Attorney, codefendant admitted that he put the $30 in prerecorded buy money in his pants pocket, explaining that he was scared and asking rhetorically, “[w]hat [was] [he] suppose [d] to do?”

In summation, defendant’s counsel argued that the field team officers who testified fabricated a story of a drug-buy gone wrong in order to protect UC44 from an unjustified discharge of his weapon. He argued that UC44 was new to the field team and targeted defendant to show how he was able to “take down these two guys himself.” He pointed to various discrepancies in the testimony, and suggested that the police tampered with evidence.

For her part, the prosecutor argued in summation that the only believable version of the events was that given by the police. In making her arguments she relied heavily on co-defendant’s statements, reading back select portions, to compare with and corroborate the police testimony, and to establish the unreliability of defendant’s claims of fabrication. During one prominent segment of her summation concerning the events in the car, she described how codefendant’s statements generally mirrored the testimony of UC44, and informed the jury thusly,

“So what does [codefendant] tell you? Forget about my witnesses. What does [codefendant] tell you? He tells you he’s in his car, his friend [defendant] comes back to the car, he gets into the car. Some strange man comes to the car saying, where’s the stuff? Where’s the stuff? What did [UC44] tell you? He told you I had a conversation with [defendant] outside. He said follow me back to the car. They go back to the car. [Defendant] gets in the car, he gets in the passenger side. [Codefendant] says he gets in the passenger side. There’s a second person. What does [codefendant] tell you? He’s in the driver’s side. What does [UC44] tell you? He says where’s the stuff? What does [codefendant] tell you? He says where’s the stuff?”

Turning to the events surrounding the possession of the drug-buy money, the prosecutor argued that codefendant was telling the truth about part of the unfolding events. She told the jury that the version of the story that made sense was the story recounted by UC44, that he threw the money in the car because defendant drew a gun on him, and that codefendant asked for the money, counted it, and then put it in his pocket.

Later in her summation, the prosecutor again encouraged the jury to rely on codefendant’s statements in determining defendant’s guilt. She asked,

“[h]ow do we know they were going to rob someone? How do we know that they were going to take the money? How do we know they were going to display a gun? Look at what they did. Look at what [co-defendant] tells you. Look at what they did, look at the evidence.”

She reminded the jury that defendant was liable as an accessory, and closed by stating, “[t]hey’re guilty of acting in concert, they’re guilty of taking this gun, they’re guilty of pointing it at [UC44], they’re guilty of taking his money at gunpoint, they’re acting in concert.”

The jury found defendant guilty of robbery in the second degree (Penal Law § 160.10 [2] [b]), petit larceny (Penal Law § 155.25), menacing in the second degree (Penal Law § 120.14 [1]), and unlawful possession or use of an imitation pistol or revolver (Administrative Code of City of NY § 10-131 [g]). The court sentenced defendant to five years’ incarceration followed by five years’ postrelease supervision for the robbery conviction, to be served concurrently with three 30-day terms on the other counts.

The Appellate Division reversed the judgment and remanded for a new trial, holding that admission of codefendant’s grand jury testimony was error under Bruton because the statements were facially incriminating as to defendant (123 AD3d 573, 575 [1st Dept 2014]). The dissenting Justice held that the statement was not facially incriminating as to defendant, because it was only inculpatory when linked with further evidence adduced at trial (id. at 579 [DeGrasse, J., dissenting]). A Justice of the Appellate Division granted the People leave to appeal (2015 NY Slip Op 63951[U] [1st Dept 2015]).

II.

As a threshold matter, we reject defendant’s argument that this appeal does not present a legal question for our consideration. Whether the trial court misapplied Bruton v United States and its progeny, by admitting a non-testifying co-defendant’s grand jury statements in violation of defendant’s Sixth Amendment right to confrontation, is a question of law (Gray v Maryland, 523 US 185, 192 [1998]; United States v Sarracino, 340 F3d 1148, 1158-1159 [10th Cir 2003]; accord United States v Edwards, 159 F3d 1117, 1125 n 4 [8th Cir 1998]). Therefore, the Appellate Division’s reversal was on the law and this appeal is properly within our jurisdiction (NY Const, art VI, § 3 [a]; CPL 450.90 [2] [a]). Resolution of the question presented involves no more than the usual exercise of our power of review to analyze the rights of confrontation afforded defendant under existing legal standards, in order to determine whether those standards were properly applied to the facts of this case.

III.

The People argue that codefendant’s statements were exculpatory and did not attribute any criminal activity to defendant. Therefore, the statements were not facially incriminating, and their admission did not violate defendant’s right of confrontation. Alternatively, the People argue that even if the statements should have been precluded, their admission was harmless error beyond a reasonable doubt because the evidence of defendant’s guilt was overwhelming, and the grand jury statements could not have contributed to defendant’s guilty verdict since they supported his claim of innocence and provided no new or incriminating information not already presented by the People’s other evidence.

We are unpersuaded by the People’s legal analysis because it relies on a misapplication of the United States Supreme Court’s Sixth Amendment Confrontation Clause jurisprudence. We further conclude that the Appellate Division correctly determined that codefendant’s grand jury statements were incriminating as to defendant in the constitutional sense, and their admission was the type of error that cannot be considered harmless based on the record before us.

“The Confrontation Clause of the Sixth Amendment, extended against the States by the Fourteenth Amendment, guarantees the right of a criminal defendant To be confronted with the witnesses against [that defendant].’ [Accordingly,] [t]he right of confrontation includes the right to cross-examine witnesses. . . . Therefore, where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand” (.Richardson v Marsh, 481 US 200, 206 [1987] [citation omitted]).

In a trio of cases the United States Supreme Court explored the boundaries of a defendant’s Sixth Amendment right of confrontation as applied to non-testifying codefendants’ statements that implicate the defendant.

In Bruton the Court stated that in some circumstances “a jury can and will follow the trial judge’s instructions to disregard” a codefendant’s statement as against another defendant, but determined that “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored” (Bruton, 391 US at 135). Such is the case, the Court concluded, where “the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury” (id. at 135-136). As a consequence,

“[n]ot only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice . . . does not testify and cannot be tested by cross-examination” (id. at 136).

Then, in Richardson, the Supreme Court explained that Bru-ton’s rule that the admission of a non-testifying codefendant’s statements deprives a defendant of the Sixth Amendment right of confrontation applies to facially incriminating statements, and not statements that incriminate based on linkage to other evidence introduced at trial (.Richardson, 481 US at 208). The Court noted that in Bruton the “facially incriminating” statement “ ‘expressly implicated]’ the defendant as [the co-defendant’s] accomplice” (id. at 207-208 [citation omitted]).

The Court revisited the Bruton rule in Gray v Maryland, and clarified that Richardson did not stand for the proposition that “inference pure and simple” determines whether a statement falls outside Bruton’s scope (523 US at 195). Instead, “Richardson must depend in significant part upon the kind of, not the simple fact of, inference” (id. at 196). In fact, “Richardson’s inferences involved statements that did not refer directly to the defendant. . . and which became incriminating ‘only when linked with evidence introduced later at trial’ ” (id.). These, therefore, are the types of statements beyond the reach of Bru-ton and the Sixth Amendment. In contrast, Bruton’s protections apply to inferences that “involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the [codefend-ant’s statements] the very first item introduced at trial” (id.). For this class of statements, the accusation “is more vivid than inferential incrimination, and hence more difficult to thrust out of mind” and therefore cannot be allowed as evidence, even with a limiting instruction (id.).

With this understanding of Bruton’s protections, we turn to the merits of the People’s appeal. It is undisputed that in his grand jury statements codefendant expressly identified defendant, by name, as his friend, and as the person who had returned to the car moments before an unknown man approached demanding “the stuff” and throwing drug-buy money into the car, which codefendant admitted he put in his pocket before driving away. Codefendant further explained to the grand jury that he had been sitting in the car, with the engine running, waiting for defendant to return from getting something to eat.

These statements were powerfully incriminating as to defendant, who was charged with acting in concert with co-defendant, who had in turn admitted to the grand jury an element of the crime charged, namely that he was in possession of the drug-buy money. Moreover, the ordinary inferences to be drawn from the statements — without reference to any other evidence presented to the jury — were that defendant was involved in an arrangement to exchange drugs for cash, which explained why the man approached the car demanding “the stuff” immediately following defendant’s return, and who willingly gave over money to complete the drug purchase. Further, and contrary to the dissent’s suggestion (dissenting op at 77), curative instructions could not avoid the substantial risk that the jury would “look[ ] to the incriminating extrajudicial statements in determining petitioner’s guilt” (Bruton, 391 US at 126).

The People argue that the statements cannot be inculpatory because they are codefendant’s exculpatory explanation for his actions — albeit a false one. This argument is unpersuasive. Regardless of their implications for codefendant, the statements do not exculpate defendant as they fail to account for defendant’s actions outside the car, before the stranger approached.

We disagree with the dissent’s characterization of the statement as a “perfectly innocent explanation of the evening’s events” (dissenting op at 75). The dissent appears to focus on codefendant’s excuses for his actions, while ignoring the obvious criminal aspects of the story as retold. There is nothing innocent about a stranger throwing money in a car and then shooting at the car as it pulls away. Even the codefendant perceived the events as suggestive of defendant’s illicit conduct. As he explained, after the stranger approached, questioned defendants about “the stuff,” and put the prerecorded money in the car, codefendant knew “it was time to get out of there” and left the scene to avoid a “situation.”

Moreover, a cursory reading of the statements reveals them to be an attempt by codefendant to establish his innocence, and to explain that he was unwillingly caught in a situation “[he] didn’t want to get [him]self in.” Like so many other statements that point the finger away from the speaker at someone else, the statements here deflect guilt from codefendant while simultaneously implicating the only other possible culpable person, defendant. The critical question to be considered in a Bruton analysis is whether the statements inculpate the defendant, not whether the statements succeed in exculpating the non-testifying codefendant. Thus, codefendant’s statements admitting possession of the robbery proceeds are facially incriminating as to defendant, regardless of codefendant’s intention to establish his innocence.

The People also argue, and the dissent contends (dissenting op at 74-75), that the statements are not incriminating as to defendant because, read in isolation without reference to any other testimony or evidence, the statements do not ascribe criminal conduct to defendant. As we have explained, this is not a plausible reading of the grand jury statements. Co-defendant stated defendant was in the car with him when co-defendant took the drug-buy money, put it in his pants pocket, and drove away. His statement also acknowledged that he was familiar with “undercover buy and bust” operations and knew what constituted “prerecorded buy money.” Codefendant’s statement explicitly stated that he had the $30 prerecorded buy money in his pocket when he was arrested. Codefendant attempted to give an explanation that he hoped would establish his innocence by suggesting that the officers fabricated their version of the events. In so doing he made statements that on their face incriminated defendant in the charged robbery, by explicitly admitting to possession of the robbery proceeds, and through appropriate inferences drawn from his statements connecting defendant’s conduct outside the car to drug-related activity.

To the extent the People argue that codefendant’s admission of his possession of the money is meaningless without testimony from the police about the drug bust operation, and that the statements are inculpatory only by reference to the officers’ testimony, the argument is based on a misunderstanding of Bruton and its progeny as applied to the facts of this case. A Bruton analysis requires a court to read the statement to determine whether the accusation “is more vivid than inferential incrimination, and hence more difficult to thrust out of mind” (Gray, 523 US at 196 [internal quotation marks omitted], quoting Richardson, 481 US at 208). Here, the People’s theory of the case was that defendant acted in concert with codefendant to rob an undercover officer of $30 in drug-buy money. Codefendant’s statements explicitly incriminate defendant in the possession of the robbery proceeds by admitting the taking of the $30 from the man who approached the car, and also implicate defendant by inference in the initial stages of a drug transaction before he returned to the car. The inferences are drawn solely from codefendant’s statements, without reference to other evidence elicited at trial that flesh out the People’s version of the events. They are in that sense self-contained, and as a consequence do not come within the Richardson contraction of Bruton.

The dissent is incorrect that our holding will require severance of every joint trial involving a codefendant’s false exculpatory statement and that our decision is an overbroad interpretation of what constitutes a “facially incriminating” statement (dissenting op at 76, 77). We do no more than apply existing United States Supreme Court precedent regarding the Confrontation Clause limitations on the admission of a non-testifying codefendant’s statement.

We note that the People’s analysis ignores the justification for the rule adopted in Bruton, namely to avoid “the substantial risk that the jury, despite instructions to the contrary, [will] look[ ] to the incriminating extrajudicial statements in determining [a defendant’s] guilt” (Bruton, 391 US at 126). As the United States Supreme Court has recognized, that risk is all the more acute in a joint trial such as the one here, where the non-testifying codefendant’s statements are untested by cross-examination, even though the codefendant “stands accused side-by-side with the defendant,” the “incriminati [ng] [statements are] devastating,” and the credibility of the incriminations “is inevitably suspect” because of “the recognized motivation to shift blame onto others” (id. at 136). Those concerns were no less pressing or present in defendant’s joint trial where codefendant did not take the stand.

IV.

A Bruton violation is subject to constitutional harmless error analysis (People v Hamlin, 71 NY2d 750, 758 [1988]; see also People v Hardy, 4 NY3d 192, 198 [2005]). Under that standard, “[Constitutional error may be harmless only if it is harmless beyond a reasonable doubt, that is, there is no reasonable possibility that the erroneously admitted evidence contributed to the conviction” (id. at 756). As the Court has often stated, the error cannot be harmless where the evidence is not overwhelming and a reasonable possibility exists that the erroneously admitted evidence contributed to defendant’s guilty verdict (id.; People v Crimmins, 36 NY2d 230, 237 [1975]).

Given that only UC44 testified that a robbery had occurred, and the defense’s theory was that the police fabricated the story of the drug-buy in order to explain what defendant argued was the undercover police officer’s unjustified shooting, the case turned on which version of the events the jury credited — that of the police or the defendant. The People’s evidence in this regard was not overwhelming. Only UC44 testified to the drug deal with defendant, and defendant argued that UC44 was motivated to fabricate the story of an intended drug transaction in order to avoid adverse consequences for the unjustified shooting of defendant. There were aspects of other police officers’ testimony that defendant argued supported his defense that the officers were engaged in a cover-up. These included conflicting versions of how one of the rear car windows was smashed during the arrests of defendant and codefendant, and the fact that both undercover officers and another officer working on the field team that night all claimed to have variously lost their memo books from that time or had them stolen. There was also evidence that the officers had an opportunity to confirm their stories and forensic evidence that undermined UC44’s contention that defendant pointed a gun at him, specifically the lack of defendant’s fingerprints on the gun.

Against this backdrop, codefendant’s testimony undermined the defense by admitting possession of the drug-buy money. Not surprisingly the prosecutor relied heavily on the grand jury statements during her summation to establish defendant’s guilt, reading back portions to illustrate how codefendant corroborated the events as described by the officers, in particular the testimony of UC44. In closing, the prosecutor reminded the jury that defendant acted in concert with codefendant and that they were jointly guilty of taking the money from the undercover officer. Moreover, during deliberations the jury requested a read back of codefendant’s statements “admitting he took the money,” indicating that the jury focused on the statement that admitted an element of the crime. On these facts and under these circumstances a reasonable possibility exists that co-defendant’s statements contributed to the jury’s guilty verdict.

V.

Given our determination, we need not address defendant’s challenges to the conviction. Accordingly, the order of the Appellate Division should be affirmed.

Pigott, J.

(dissenting). According to the rule set out in Bru-ton v United States, a defendant is deprived of his Sixth Amendment right to confront adverse witnesses if a non-testifying codefendant’s “powerfully incriminating” statement is admitted at their joint trial (391 US 123, 135 [1968]). If a statement “[i]s not incriminating on its face” but becomes “so only when linked with evidence introduced later at trial,” there is no Sixth Amendment violation, and Bruton does not apply (Richardson v Marsh, 481 US 200, 208 [1987]).

The rationale for the Bruton rule is that some statements are so explicitly and powerfully incriminating, the jury cannot “possibly be expected” to refrain from using them as evidence against the defendant (id. at 208). Where statements are not facially incriminating but require inference or linkage, however, “it is a less valid generalization that the jury will not likely obey the instruction to disregard” them (id.). In the latter situation, “the judge’s instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget” (id.).

I dissent from the majority’s conclusion that the admission of the testimony codefendant Rushing gave before the grand jury constituted a Bruton error and deprived defendant of his Sixth Amendment right of confrontation. None of Rushing’s statements facially incriminated anyone, and therefore, Bruton does not apply.

According to Rushing’s statement, he and defendant were driving around one evening looking for defendant’s car. They stopped for food at a plaza and, while Rushing stayed in the car, defendant went into one of the restaurants and got something to eat. Rushing stated that after defendant returned to the car, alone, “someone came to the vehicle talking about where is the stuff and reaching money out.” As Rushing began to drive away, the man dropped $30 into the vehicle, which Rushing eventually put in his pocket.

That was the extent of Rushing’s testimony — a perfectly innocent explanation of the evening’s events that did not implicate either defendant in any criminal activity. The admission of this testimony did not violate defendant’s right of confrontation because, as Richardson directs, we are to assume that the judge’s limiting instruction successfully dissuaded jurors from using Rushing’s testimony to infer defendant’s guilt.

The majority disagrees. It finds Rushing’s testimony “powerfully incriminating as to defendant,” and therefore inadmissible under Bruton, for two reasons. First, the majority claims “the ordinary inferences to be drawn from the statements— without reference to any other evidence presented to the jury— were that defendant was involved in an arrangement to exchange drugs for cash” (majority op at 69-70). Not so. Rushing stated that defendant “went over there to get something to eat [and w]hen he came back to the car . . . [h]e wasn’t with nobody. I didn’t see him with nobody” (emphasis added). I am at a loss to understand how one could infer from this statement, standing alone, as if it had been the “very first item introduced at trial” (Gray v Maryland, 523 US 185, 196 [1998]), that defendant did anything other than get food and return to the vehicle. The idea that defendant set up a drug deal while he was away from the car could only have come from the testimony of the officers, which requires the kind of linkage that falls outside Bruton’s narrow scope.

Second, the majority claims that Rushing’s testimony “explicitly incriminate [d] defendant in the possession of the robbery proceeds by admitting the taking of the $30 from the man who approached the car” (majority op at 72). According to the majority, his testimony established an element of the charged crime and placed defendant in joint possession of the robbery proceeds. It did no such thing. Rushing stated that he picked up the money the man dropped into the car and put it in his pocket. Whether a robbery occurred and whether that money constituted the proceeds of a robbery was established only through the testimony of the officers involved and the introduction of the buy money itself.

“As Bruton and subsequent cases make clear, [an] extrajudicial statement must clearly implicate the defendant in order for there to be a violation of that defendant’s sixth amendment right to confront adverse witnesses” (Vincent v Parke, 942 F2d 989, 991 [6th Cir 1991] [emphasis added and citations omitted]). Rushing’s testimony did not implicate defendant in any crime, nor did it shift blame onto defendant. It provided a wholly innocent explanation that, if believed by the jury, exculpated both men and therefore did not violate defendant’s Sixth Amendment rights (see United States v Rubio, 709 F2d 146, 155 [2d Cir 1983] [holding that it was proper to admit a non-testifying codefendant’s statement that provided an innocent explanation for defendant’s possession of drug paraphernalia commonly used to weigh and test cocaine because the statements “were not inculpatory” and did not shift blame onto defendant]).

Not only does the majority’s erroneous conclusion misapply Bruton and Richardson, but it also may have the practical effect of requiring severance of every joint trial in which a false exculpatory statement of one defendant is sought to be used, in direct conflict with the State’s “strong public policy favor [ing] joinder” (People v Mahboubian, 74 NY2d 174, 183 [1989]). Specifically, this Court has held that a defendant is unduly prejudiced by the redaction of a non-testifying codefendant’s statement where the redaction removed material that “supported [the defendant’s] arguments and if believed, it explained much of the evidence against him” (id. at 188). Sometimes called a “reverse” Bruton violation (see People v Higgins, 299 AD2d 841, 842 [4th Dept 2002], Iv denied 99 NY2d 615 [2003]), this undue prejudice may be present even where the “material was not ‘exculpatory’ in the strictest sense” but “would have provided the jury with an explanation for some of the evidence equally consistent with an inference of innocence as of guilt” (Mahboubian, 74 NY2d at 189; see also People v La Belle, 18 NY2d 405, 410 [1966] [concluding that the trial court abused its discretion in denying defendant’s motion for a severance where a redacted statement “seriously prejudiced” the declar-ant by eliminating portions that tended to exculpate him]). Here, without Rushing’s statement, there was no nonspecula-tive evidence supporting an innocent explanation for defendant’s undisputed presence at the scene or how he came to be shot by the undercover officer.

Because the majority fails to explain what type of redaction would satisfy both Bruton and Mahboubian and has construed the term “facially incriminating” so broadly that it includes evidence that supported an inference of innocence, any effort to eliminate potential Bruton problems in the wake of today’s decision may very well result in undue prejudice to codefend-ants, like Rushing and defendant, who stand to benefit from the statement’s introduction.

I would avoid altogether the path the majority has taken and hold that the trial court properly admitted Rushing’s statement with the limiting instruction that the jury could not consider it as evidence against defendant. I am unpersuaded by defendant’s remaining arguments for affirmance and therefore would reverse the order of the Appellate Division and remit the matter to that Court for consideration of issues not yet decided.

Chief Judge DiFiore and Judges Abdus-Salaam and Fahey concur; Judge Pigott dissents in an opinion in which Judges Stein and Garcia concur.

Order affirmed.

      . Unlike the dissent we do not read codefendant’s statement so as to ignore what he specifically admitted and the inferences to be drawn therefrom regarding his perception of unfolding criminal activity. Codefend-ant stated that he knew what buy-and-bust operations were, that he knew what prerecorded buy money was, that the stranger threw money into the car after asking about “the stuff,” that codefendant drove away because the situation was “something [he] didn’t want to get [him] self in because [he’d] been involved in situations like that,” and that he had prerecorded buy money in his pants pocket when he was arrested. To the extent the dissent suggests that codefendant did not admit possession of illicitly obtained money because he did not use the term “prerecorded” (see dissenting op at 76 n), the record tells a different story and establishes that when asked about “prerecorded buy money in your pants pocket” codefendant acknowledged the money found on him as such, and never denied possession, choosing instead to explain how it ended up in his pocket.

      . The dissent argues that codefendant’s statement was in actuality favorable to defendant (dissenting op at 77). However, without codefendant’s statement there would be no admission of possession of the prerecorded buy money, and no testimony regarding criminal activity by defendant other than that of the State’s witnesses.

       The majority suggests that Rushing “admitted that he put the $30 in prerecorded buy money in his pants pocket” (majority op at 65). That statement, however, came from the prosecutor and therefore does not bear on the question of whether Rushing’s statements facially incriminated defendant in the possession of the robbery proceeds. For his part, Rushing never used the term “prerecorded” or acknowledged that the money he put in his pocket was buy money.


source: Caselaw Access Project

author: Abdus-Salaam, J. Stein, J.

license: Public Domain

text:
    [49 NE3d 1180, 29 NYS3d 888]
    The People of the State of New York, Respondent, v Roy Gray, Appellant.
    Argued February 11, 2016;
    decided March 31, 2016

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Sara Gurwitch of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Justin J. Braun, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Abdus-Salaam, J.

Under the circumstances of this case, we hold that defendant’s attorney did not deprive him of the effective assistance of counsel by declining to move to reopen the suppression hearing.

At the suppression hearing preceding defendant’s murder trial, a police detective testified that, after receiving information implicating defendant in the murder, he interviewed defendant about the crime at a North Carolina police station, where defendant was being held by local authorities at the New York detective’s request. The detective issued oral Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]) from memory at the start of the interview, and defendant initially stated that he wanted to take the blame for the crime because his half brother, an alleged accomplice in the murder, had spent enough time in prison already. The detective ceased questioning, read Miranda warnings from a form provided by North Carolina officers, waited 45 minutes to receive a New York Police Department (NYPD) Miranda form via fax and then issued Miranda warnings again from the NYPD form. After the 45-minute break and the issuance of those warnings, the detective resumed questioning defendant, eliciting defendant’s statement that, inter alia, he had shot at the victim’s groin and fled the scene without seeing what happened next, and his half brother had not shot at or harmed the victim. The detective wrote down this statement at defendant’s request.

Based on the detective’s description of the interrogation at the hearing, the hearing court granted defendant’s motion to suppress his initial statement and his post-break statement due to the detective’s purported failure to issue a complete set of Miranda warnings at the outset of the interview. However, the Appellate Division reversed and denied the suppression motion, reasoning that defendant’s second statement had been attenuated from the first, and it therefore remanded the case for trial (see People v Gray, 51 AD3d 63, 64-67 [1st Dept 2008]).

At the start of trial, the parties stipulated to the admission of defendant’s first statement about taking the blame for the crime into evidence, as counsel wished to use that statement to suggest that defendant’s second statement had been inaccurately transcribed and, at any rate, had stemmed from a desire to save his half brother. Later at trial, however, the detective who had interrogated defendant gave a different account of defendant’s statements than the one set forth in his hearing testimony. In particular, the detective testified, while defendant had still said that he wished to take responsibility for the murder to exculpate his half brother, he also indicated that he had shot at the victim’s groin, much as he did in his statement following the 45-minute break in the interview. In addition, prior to the break between defendant’s two statements, the detective spoke to defendant for about an hour and 10 minutes, which was a longer period than was indicated by the detective’s hearing testimony.

At a sidebar, defense counsel complained about the detective’s revised account of defendant’s first statement and asked that the detective instead limit his account of that statement to the information contained in his hearing testimony, and the court granted counsel’s request. Thereafter, the detective testified consistently with his hearing testimony. At the end of trial, the jury returned a verdict convicting defendant of murder in the second degree (see Penal Law § 125.25 [1]), and the court later sentenced him to a prison term of 25 years to life.

Afterward, defendant filed a motion to vacate the judgment pursuant to CPL 440.10, alleging that defense counsel had rendered ineffective assistance by failing to move to reopen the suppression hearing based on the detective’s trial testimony about his interview with defendant. The People opposed the motion, asserting that defense counsel had properly declined to move to reopen the hearing in light of his evident recognition that he could not have won suppression of defendant’s second statement. Defense counsel filed an affidavit explaining his trial strategy. In sum and substance, counsel averred that he had believed that defendant’s second statement would almost certainly be admitted into evidence at trial and that therefore he had focused on using the exculpatory preface of the first statement to cast doubt on the probative worth of defendant’s more incriminating subsequent comments. Supreme Court denied defendant’s postjudgment motion without a hearing, finding that counsel had a legitimate strategic basis for declining to move to reopen the suppression hearing and that counsel’s mistakes, if any, had not prejudiced defendant.

On a consolidated appeal from the order denying defendant’s postjudgment motion and from the judgment, the Appellate Division affirmed (see People v Gray, 116 AD3d 480, 480-481 [1st Dept 2014]). The Appellate Division concluded that, regardless of whether counsel had a sound strategy, counsel had not been ineffective for declining to make fruitless renewed efforts to suppress defendant’s second statement, as the detective’s trial testimony still revealed that the second statement was clearly attenuated from the first (see id. at 480-481). A Judge of this Court granted defendant leave to appeal (24 NY3d 1084 [2014]), and we now affirm.

Defense counsel did not deprive defendant of the effective assistance of counsel when he decided not to move to reopen the suppression hearing based on the detective’s trial account of the statement made by defendant prior to the issuance of the North Carolina Miranda warnings. Because the Appellate Division had rejected counsel’s original arguments for suppression of the post-break statement prior to trial and cited a number of factors that remained extant throughout the proceedings in this case, counsel reasonably thought that the statement would be admitted into evidence regardless of any new developments, and instead of making what he sensibly thought was a long-shot motion to reopen the hearing, he decided to use the exculpatory portion of defendant’s first statement to undermine the credibility of the second statement and place it in context.

Contrary to defendant’s and the dissent’s position (see dissenting op at 87-91), counsel properly recognized the highly remote possibility that the defense would have succeeded in convincing the court to reopen the suppression hearing and suppress the second, post-break statement. As a threshold matter, notwithstanding the dissent’s protestation (see dissenting op at 88), it is not entirely clear that the court would have exercised its discretion to reopen the hearing (see CPL 710.40 [4]; see People v Clark, 88 NY2d 552, 555-556 [1996]). In that regard, CPL 710.40 (4) grants a trial court discretion to permit a defendant to renew a motion to suppress evidence provided that the defendant shows “that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion.” Here, when counsel told the trial court that “we,” presumably referring to the defense, already “knew that [the detective] spoke at some length to [defendant]” before any proper Miranda warnings were given, counsel suggested that he was aware of the full extent of defendant’s comments prior to the issuance of the North Carolina Miranda warnings, and therefore the detective’s trial testimony about the entire conversation between him and defendant prior to those warnings may not have disclosed previously undiscovered or undiscoverable facts warranting a reopened hearing.

Moreover, at a reopened hearing, it was highly unlikely that the court would have suppressed the statement made by defendant following the issuance of the New York Miranda warnings. Significantly, the totality of the circumstances of the interrogation described by the detective at trial, including the detective’s administration of some form of Miranda warnings at the start of the interrogation, the 45-minute break between defendant’s two statements, the issuance of written Miranda warnings before and after the break, defendant’s prior experience speaking to the police during his eight previous arrests and the mixed inculpatory and exculpatory nature of his statements, plainly showed that the post-break statement was voluntary and attenuated from the pre-break statement (see People v Paulman, 5 NY3d 122, 130-131 [2005]; People v Chappie, 38 NY2d 112, 115 [1975]; cf. Missouri v Seibert, 542 US 600, 611 [2004 plurality, Souter, J.]; id. at 620-622 [Kennedy, J., concurring]). In light of the weakness of defense counsel’s potential bid for suppression at a reopened hearing, counsel pursued a legitimate strategy in forgoing an unavailing motion to reopen the hearing and attempting to use the exculpatory part of defendant’s pre-break statement to discredit the post-break statement in the eyes of the jury. Notably, too, had counsel sought a reopened hearing, the detective would have had the opportunity to strengthen his account of the interrogation and the voluntariness of defendant’s statements, potentially placing the People in a better position to undermine counsel’s efforts to attack the credibility of the post-break statement at trial. Thus, counsel had a reasonable trial strategy, and defendant’s current disagreement with it does not entitle him to relief on his ineffective assistance claim (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Hogan, 26 NY3d 779, 785 [2016]; see generally People v Evans, 16 NY3d 571, 576 [2011]; cf. People v Clermont, 22 NY3d 931, 933-934 [2013]). Finally, we have considered and rejected defendant’s remaining claim. Accordingly, the order of the Appellate Division should be affirmed.

Stein, J.

(dissenting). Contrary to the majority’s determination, I believe that the detective’s trial testimony substantially undermined the prior suppression determination and that, under the facts of this case, defense counsel’s failure to move to reopen the suppression hearing deprived defendant of the effective assistance of counsel. Therefore, I respectfully dissent.

I.

The victim was tragically shot and killed in his home. Four people were eventually charged with crimes in connection with his death, including defendant and his half brother, who were tried separately. At a pretrial Huntley hearing (see People v Huntley, 15 NY2d 72 [1965]), Detective Michael DePaolis testified that, after he arranged to have defendant arrested in North Carolina on an open warrant, he and another detective traveled to North Carolina to interview defendant about the homicide. DePaolis testified to the following timeline at the hearing: first, he orally administered Miranda warnings to defendant (see Miranda v Arizona, 384 US 436, 467 [1966]); second, defendant told DePaolis “that he was going to take the blame for this murder because his brother had served enough time in his life”; third, DePaolis read defendant his Miranda rights from a North Carolina form; fourth, after waiting 45 minutes for a Miranda warnings form to be faxed from New York City, DePaolis read the New York City form to defendant and defendant waived his rights; and fifth, defendant made a written statement admitting that he, along with another person, shot the victim.

Supreme Court suppressed defendant’s statements on the grounds that DePaolis had not explained which Miranda rights were given to defendant before his initial oral statement, there was no testimony that defendant had waived his Miranda rights before making that statement, and defendant’s subsequent written admission was not sufficiently attenuated from his inadequately warned oral statement. The court denied the People’s subsequent motion to reopen the hearing because, even if the initial Miranda warnings had been further explained by DePaolis, according to the People’s motion papers, the warnings were still deficient because defendant was not informed that he would be provided with an attorney if he could not afford one, and there was still no basis for determining that defendant had waived his rights at that time. The People appealed the suppression order, certifying that, without defendant’s statements, they lacked legally sufficient evidence to proceed to trial (see CPL 450.20, 450.50).

The Appellate Division reversed and denied defendant’s motion for suppression of his written statement (51 AD3d 63 [1st Dept 2008], lv denied 10 NY3d 863 [2008], cert denied 555 US 1182 [2009]). The Appellate Division held that defendant’s written statement was sufficiently attenuated from his oral statement because defendant first admitted his involvement in the murder only after the detective had read him the warnings from both the North Carolina and New York forms, with an intervening 45-minute break. The Appellate Division relied heavily on the fact that, according to DePaolis’s hearing testimony, no questioning or, indeed, any communications— other than the reading of the Miranda warnings — occurred between the time of defendant’s initial oral statement and his subsequent warned written statement (see id. at 66).

At trial, defense counsel pursued a strategy of persuading the jury that defendant’s written statement was a false confession, as evidenced by his previous oral statement that he would take the blame for his brother. To a lesser degree, defense counsel also argued to the jury that the written statement was embellished by the transcriber, Detective DePaolis.

During DePaolis’s trial testimony, he revealed that, after defendant made the oral statement referring to his brother, defendant was interrogated for over an hour, during which time he orally related to the detectives the substance of his subsequent written statement. Defense counsel objected to the detective’s testimony about this second oral statement, noting that it had not been explored at the suppression hearing. In response, the prosecutor asserted that the second oral statement was substantively identical to the written statement. The trial court pointed out several times that the Appellate Division had apparently been unaware of this second oral statement or the fact that defendant had been interrogated for over an hour before he made the written statement, and the trial court observed that the lack of such awareness was, “[i]n part[,] . . . the basis for the Appellate Divisiones] finding that there was attenuation” between the initial oral statement and the subsequent written statement. Nevertheless, defense counsel did not move to reopen the suppression hearing to challenge the admissibility of the written statement despite the detective’s testimony arguably defeating the basis for attenuation. Instead, defense counsel maintained that excluding reference to the second oral statement would “obviate any problems.” The parties agreed to this course of action. The jury subsequently acquitted defendant of first-degree felony murder, but convicted him of second-degree intentional murder.

Defendant appealed and, while his appeal was pending, he moved, pro se, to vacate his conviction pursuant to CPL 440.10. Defendant argued, among other things, that trial counsel was ineffective for failing to move to reopen the Huntley hearing after DePaolis testified at trial. The People opposed defendant’s motion, and proffered an affidavit from defendant’s trial counsel, wherein he explained that his strategy at trial was to convince the jury that defendant’s written statement was false because he gave it only in an attempt to shield his brother from liability. However, counsel did not explain why he failed to move to reopen the suppression hearing after the detective’s trial testimony differed from that presented at the hearing and undermined the basis for the Appellate Division’s resolution of the attenuation question in the People’s favor.

Supreme Court denied defendant’s motion — also without specifically addressing counsel’s failure to move to reopen the suppression hearing — concluding that counsel had pursued a reasonable strategy at trial. In one order, the Appellate Division affirmed the denial of defendant’s CPL 440.10 motion and the judgment of conviction and sentence (116 AD3d 480 [1st Dept 2014]). The Appellate Division acknowledged that the detective’s trial testimony had revealed new material facts bearing on its earlier suppression determination. However, that Court held that, even assuming counsel lacked a strategic basis for failing to move to reopen the suppression hearing, defendant was not prejudiced or deprived of meaningful representation because, “although the information that emerged at trial gave defendant a stronger argument that his written statement was not attenuated, it did not give him a winning one” (id. at 481).

A Judge of this Court granted defendant leave to appeal (24 NY3d 1084 [2014]).

II.

In my view, defense counsel s failure to move to reopen the suppression hearing deprived defendant of review of a close suppression argument that, if successful, “could have been dispositive of the entire proceeding” (People v Clermont, 22 NY3d 931, 934 [2013]) in light of the People’s certification that they lacked legally sufficient evidence to prosecute without defendant’s statements (see CPL 450.20, 450.50). Further, to the extent that counsel’s failure to move to reopen the hearing was based on a strategy, that strategy was unreasonable.

Pursuant to CPL 710.40 (4), a suppression motion may be renewed, even after trial has commenced, upon a showing “that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion.” Generally, the decision of whether to grant a motion to reopen rests in the discretion of the trial court, but a defendant is not required to establish that the new facts are “outcome-determinative” or “essential” (People v Clark, 88 NY2d 552, 555-556 [1996]). The additional pertinent facts must merely be such that “would materially . . . have affected the earlier [suppression] determination” (id. at 555; see People v Delamota, 18 NY3d 107, 118-119 [2011]).

There can be no serious question that the revelation by DePa-olis at trial that he had engaged in an hour-long interrogation of defendant between defendant’s initial statement (that he would take the blame for his brother) and the time that defendant was given valid Miranda warnings was “material” to, and impacted upon, the Appellate Division’s earlier denial of suppression. As the trial court readily observed, the Appellate Division’s attenuation analysis relied, in large part, on the fact that defendant had made only a non-inculpatory, ambiguous, oral statement, and was not subjected to any significant interrogation, before the administration of proper Miranda warnings preceding his written confession. Given the detective’s trial testimony and the People’s concession that the written statement merely memorialized the insufficiently warned oral statement of which the Appellate Division had no knowledge, defendant’s argument that the written statement was not sufficiently attenuated was “considerably strengthened” by the facts revealed at trial (Delamota, 18 NY3d at 118). Far from a “longshot” (majority op at 82), defendant would have been entitled to a reopening of the suppression hearing had such a request been made.

In evaluating the prejudice that flowed from defense counsel’s failure to move for reopening, the Appellate Division erred by rejecting defendant’s ineffective assistance claim based on its conclusion that defendant did not have a “winning” suppression argument (116 AD3d at 481). Certainly, “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004]). However, where, as here, counsel fails to raise a close suppression issue, a defendant may establish that he or she was sufficiently prejudiced so as to undermine our confidence in the suppression proceedings (see Clermont, 22 NY3d at 934; see generally Stultz, 2 NY3d at 284).

It is undisputed that defendant was entitled to Miranda warnings before his initial statement and that, if those warnings were incomplete, the resulting statements must be suppressed (see People v Hutchinson, 59 NY2d 923, 924-925 [1983]). Even the warnings as recited in the People’s motion to reargue the original suppression determination were deficient, and it is, therefore, unlikely that the People would have succeeded in establishing the adequacy of those warnings if the hearing had been reopened. In the event the People did not succeed in that regard, suppression of defendant’s second oral statement and the subsequent written statement would have been required “unless there [was] such a definite, pronounced break in the interrogation that . . . defendant may be said to have returned, in effect, to the status of one who [was] not under the influence of questioning” (People v Chappie, 38 NY2d 112, 115 [1975]; see People v Paulman, 5 NY3d 122, 130 [2005]).

To determine whether a warned statement is sufficiently attenuated from an unwarned one, courts consider a number of factors, including

“the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police” (Paulman, 5 NY3d at 130-131; see People v White, 10 NY3d 286, 291 [2008], cert denied 555 US 897 [2008]).

According to the facts as elicited at trial, defendant was given incomplete warnings, made the initial suppressible statement that he was going to accept blame, then orally inculpated himself during an hour-long interrogation, was given the North Carolina warnings, had only a 45-minute break, was read the warnings from the New York form and waived his rights, and then gave his written statement — the content of which the People admitted was exactly the same as the previous oral statement. Based on this timeline, defendant had a strong argument that his written statement was not attenuated from his suppressible oral statements (see People v Bethea, 67 NY2d 364, 368 [1986]; compare People v Malaussena, 10 NY3d 904, 905 [2008]).

Although the Appellate Division found that defendant’s statement that he was willing to take the blame for his brother demonstrated an eagerness and willingness to speak to the police, we usually have found this factor to be met in cases where the defendant has voluntarily answered questions in a noncustodial setting, whereas, here, defendant was already under arrest and subjected to custodial interrogation at the relevant time (compare Paulman, 5 NY3d at 131, with Bethea, 67 NY2d at 368). Moreover, as far as can be discerned from the record, defendant was interrogated in the same manner, by the same detectives, and in the same location during the questioning that elicited each of the statements at issue. In addition, the break was merely 45 minutes long and, while it is true that defendant was apparently given incomplete Miranda warnings twice before that break, the People conceded at trial that the written statement was the culmination of defendant’s prior unwarned statements given over the course of the interrogation.

The Appellate Division also relied in its original attenuation analysis on the fact that defendant’s initial unwarned statement was “ambiguous” and not necessarily inculpatory; however, the trial testimony demonstrated that, in fact, defendant had made an additional oral statement — confessing to shooting the victim — before receiving complete warnings and making the written statement. Thus, the Appellate Division’s original attenuation determination was significantly undermined by the facts presented at trial regarding the circumstances of defendant’s written confession, and it is questionable whether the remaining factors relied on by the Appellate Division to uphold that determination, such as defendant’s criminal history, would have led to a finding that defendant was “returned, in effect, to the status of one who is not under the influence of questioning” (Chappie, 38 NY2d at 115). As a result, the detective’s testimony at trial did not merely give rise to “a motion or argument that has little or no chance of success” (Stultz, 2 NY3d at 287). Rather, the revelation at trial signified that defendant had a significant and close argument for suppression, which should have prompted counsel to move to reopen the hearing (see Clermont, 22 NY3d at 934).

Nor, as the majority concludes, was there a reasonable trial strategy that could account for counsel’s omission. Counsel’s strategy — to use defendant’s first statement, indicating that he would take the fall for his brother, to suggest to the jury that the written statement was false — simply cannot explain counsel’s failure to move to reopen the suppression hearing. Defendant had nothing to lose and everything to gain by revisiting the suppression question. If suppression was granted, defense counsel would have no need to use the first oral statement to justify the written statement — which would not have been admissible at trial — and the People had already certified that they lacked legally sufficient evidence without that statement. Indeed, suppression of the written statement had become even more critical by the time of trial because the People had discovered defendant’s DNA on a hat found in the victim’s room after the shooting. Defendant’s half brother was excluded as a contributor to the DNA mixture, tending to disprove counsel’s theory argued at trial that defendant’s half brother was the shooter and that defendant had falsely confessed to protect him.

By contrast, if the suppression determination was upheld— either because the People demonstrated that valid Miranda warnings had been given, or because the court determined that the written statement was still sufficiently attenuated from the oral ones — defendant would have suffered no prejudice. The People maintained at trial that the oral statement contained only the same information as the written statement, and defense counsel’s two theories of false confession and inaccurate transcription would have been just as available and effective if the second oral statement was admitted at trial. Thus, in my view, there was no “legitimate or reasonable tactical choice” to support counsel’s actions, and counsel’s failure to move to reopen the suppression hearing constituted ineffective assistance (People v Caldavado, 26 NY3d 1034, 1036 [2015]). Furthermore, because counsel’s failure to move to reopen the suppression hearing significantly undermines confidence in the suppression determination, the appropriate remedy — rather than the Appellate Division making a de novo determination of the suppression question based on the limited facts revealed at trial — was remittal to the trial court for reopening of the suppression hearing (Clermont, 22 NY3d at 931; see People v Bilal, 27 NY3d 961, 961-962 [2016] [decided herewith]).

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

Order affirmed.

       It is true, as the dissent observes (see dissenting op at 89-90), that defendant made similar statements to the same detectives before and after the 45-minute break. However, as we have previously observed, no one factor or subset of factors is dispositive of the question of attenuation, and the totality of the circumstances here strongly indicated that the second statement was attenuated from the first (see Paulman, 5 NY3d at 130-131).

       To the extent defense counsel indicated at trial that he was aware that DePaolis had spoken to defendant “informally,” the record does not establish that defense counsel knew that there was an hour-long custodial questioning that resulted in defendant’s oral confession to the shooting, as evidenced by counsel’s concern that he did not know what DePaolis’s testimony would be if he was permitted to explore defendant’s second oral statement at trial. Furthermore, even assuming that defense counsel was aware of the pertinent facts, this would merely raise the question of whether counsel was ineffective for failing to move to reopen the suppression hearing or take other action immediately after the Appellate Division, relying on an apparently erroneous view of the facts, issued a decision reversing a critical suppression ruling in defendant’s favor.


author: Rivera, J.

text:
    [49 NE3d 1165, 29 NYS3d 873]
    In the Matter of Ranco Sand and Stone Corp., Appellant, v Patrick Vecchio et al., Respondents.
    Argued February 18, 2016;
    decided March 31, 2016

      Leonard J. Shore, Commack, for appellant.

      Devitt Spellman Barrett, LLP, Smithtown (John M. Denby of counsel), for respondents.
   OPINION OF THE COURT

Rivera, J.

At issue on this appeal is the justiciability of Raneo Sand and Stone Corp.’s challenge to a local town board’s positive declaration pursuant to the State Environmental Quality Review Act (ECL art 8 [SEQRA]) that Ranco’s proposed rezoning may have a significant effect on the environment, and requiring Raneo to prepare and submit a draft environmental impact statement (DEIS). In accordance with Matter of Gordon v Rush (100 NY2d 236, 242 [2003]), we conclude that the Town’s SEQRA positive determination is not ripe for judicial review.

Raneo owns two parcels of contiguous property in an area zoned for residential use in Suffolk County in Smithtown, New York (Town). In 1997, Raneo leased parcel one to a private school bus company which, at all times relevant to this appeal, used it as a bus yard and trucking station. Although this use is unapprovedly nonconforming, the Town had not enforced residential zoning requirements on Raneo. Nevertheless, in 2002, Raneo applied to rezone parcel one from residential to heavy industrial use.

In preparation for a public hearing on the application, the Town’s Director of the Planning and Community Development Department prepared a report which addressed various planning considerations, stressed the potential environmental impact of the proposed rezoning, and recommended approval of the application, if made subject to significant limiting land use conditions. The report characterized Ranco’s zoning application as “a request for a significant amendment to the [Town’s] Comprehensive Plan.” It highlighted the importance of assessing the rezoning application fully aware of the physical and legal context of parcel one, including: previously documented problems in current and future development in the area; the indefinite adjournment of several zone change petitions; recent litigation involving the property immediately to the north of, and held in common ownership with, parcel one, which were rezoned for heavy industrial use purposes in accordance with a stipulation of settlement; and the existence of nonconforming zoning activities on nearby properties.

With these considerations in mind, the report described the effects of rezoning parcel one on the surrounding environs. As the report explained, parcel one is a 2.16 acre site, partially cleared, and bounded on the east by the Sunken Meadow Parkway and several single-family homes located directly across the road. Along its other borders is property to the west used for industrial purposes, undeveloped land to the south, and to the north is property used as a trucking station. Although parcel one is located in an area with some nonconforming heavy industrial uses, the report clarified that because such uses tend to generate impacts that are not compatible with residential uses, they are normally separated from residential zones. As such, the report emphasized that it would be preferable not to locate heavy industrial uses so near the Sunken Meadow Parkway and existing single-family homes. The report further stressed that the “chief concern for all development in this area is the protection of existing residential developments east of the parkway and protection of the [parkway] itself.”

The report went on to warn that development on parcel one “could affect the parkway directly” and set a precedent for future uses and structures in the entire area west of the parkway. The report determined that because parcel one is a mere 400 feet from several single-family residences, those homes could be affected by noise, odors, vibration, air pollution, glare, and other visual impacts, as well as traffic generation associated with heavy industrial uses. Moreover, as the report found, due to this close proximity to residences and residentially-zoned properties, parcel one’s size and shape are not appropriate for certain types of heavy industrial uses. The report further noted that rezoning would permit more intense industrial uses than those previously conducted on parcel one and some lots to its north.

Turning to the merits of Ranco’s application, the report advised that if the rezoning were approved, the Town Board should take into account the effects on the residences and parkway. It also suggested that the Town Board consider whether to prohibit, outright, certain high-impact industrial uses on parcel one, and whether to require the installation of buffers. It concluded that “[a] study to develop a comprehensive approach to zoning and development may be appropriate before further changes are approved.” The report ultimately recommended that the request be approved with certain conditions, and that the “rezoning should be consistent with a comprehensive planning and zoning analysis of surrounding lands.”

After the public hearing, the Town’s Planning Board, whose members advise the Town Board on zoning matters, recommended approval of the application in 2004. No further action was taken on the application for another five years, when the Town Board, acting as the lead agency under SEQRA, adopted a resolution issuing a positive declaration that rezoning parcel one “may have a significant effect on the environment” and required Raneo to prepare a DEIS.

The Town Board’s positive declaration stated that the rezoning was “inconsistent with the planned use of [parcel one as a single-family residence, bus yard, and trucking station] and with the [Town’s] Comprehensive Master Plan.” Similar to the findings in the Director’s report, the declaration stated that rezoning was “incompatible with existing residential land uses in the vicinity,” and development of parcel one “has the potential to result in increased environmental impacts upon neighboring residentially-developed properties and upon the Sunken Meadow Parkway corridor relative to development of the subject parcel in accordance with the existing zoning.” The positive declaration further stated that because rezoning would allow “more intensive heavy industrial uses” than those presently conducted on parcel one, there was potential for increased impacts on noise, air quality, light, traffic, and the increased use, storage and handling of toxic and hazardous materials. It further noted that rezoning could serve as “a precedent for future downzonings throughout the Town to accommodate unpermitted land uses ... in contravention of the Town’s zoning code.”

Raneo commenced this CPLR article 78 proceeding against respondents the Town of Smithtown and the members of the Town Board, seeking to annul the positive declaration as “arbitrary, capricious, [and] unauthorized,” and requesting mandamus relief directing the Town to process the rezoning application without a DEIS. In support of its petition, Raneo asserted that the declaration imposed a hardship on the company because it would force it to incur between $75,000 and $150,000 in expenses in completing the DEIS. Raneo also argued that a DEIS was unnecessary, as demonstrated by the prior rezoning for heavy industrial use of Ranco’s contiguous parcel (parcel two), which was done without a DEIS. In that regard, Raneo claimed that the court should treat the Town’s prior rezoning of parcel two as res judicata and binding on the Town with respect to Ranco’s parcel one application.

Parcel two had been rezoned from residential to heavy industrial use in accordance with a stipulation of settlement in litigation commenced by its prior owner, the deceased spouse of Ranco’s majority owner. This is the same litigation and settlement referenced in the Director’s report. Raneo argued that the two properties have been used as a single parcel, and in the same manner ever since the litigation over the rezoning of parcel two. Raneo further pointed out that in 1999, during the course of the parcel two rezoning litigation, Supreme Court did a field visit of the area and observed that the Town had been lax in enforcing its zoning ordinance for 10 years, and over time the area had changed, and was by then characterized by heavy and light industrial uses and mining operations, which resulted in major environmental effects. Raneo contended nothing had changed in the area since the court’s visit, and that a DEIS would not provide any new information relevant to the rezoning application.

Respondents moved to dismiss the petition for failure to state a cause of action. Supreme Court granted the motion, finding the matter not ripe for judicial review. The Appellate Division affirmed, concluding that the SEQRA positive declaration requiring Raneo to prepare a DEIS was the initial step in the decision-making process, and therefore did not give rise to a justiciable controversy (124 AD3d 73, 86 [2d Dept 2014]). We granted leave to appeal (25 NY3d 902 [2015]).

Raneo reasserts its claim below that the Town Board’s adoption of a positive declaration pursuant to SEQRA is a justiciable controversy because the requirement that Raneo prepare a DEIS will cause it actual and real financial injury. In support of this argument, Raneo asserts that it will incur significant expenses in preparing a DEIS, which it contends is unnecessary since Raneo merely seeks to continue with its longstanding and long-tolerated use of parcel one, but under a proper zoning classification. The Town counters, on behalf of all respondents, that the positive declaration is not a final administrative determination ripe for review because it continues to be subject to action by the Town Board and any injury to Raneo may be prevented or ameliorated by subsequent decisions.

To challenge an administrative determination, the agency action must be “final and binding upon the petitioner” (‘Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194 [2007], quoting CPLR 217 [1]; see 7801 [1] [article 78 available for challenges to “final” determinations]). The finality requirement “draw[s] from case law on ripeness for judicial review” (Walton, 8 NY3d at 195, citing Matter of Essex County v Zagata, 91 NY2d 447, 453-454, 454 n [1998]; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510 [1986], cert denied 479 US 985 [1986]). As the Court has recognized, the ripeness doctrine is closely related to the finality requirement, and in order for an administrative determination to be final, and thus justiciable, it must be ripe for judicial review (Matter of Essex County, 91 NY2d at 453-454, 454 n).

In the context of a challenge to an action pursuant to SEQRA, this Court held in Gordon that a positive declaration is ripe for judicial review when two requirements are satisfied. First, “the action must ‘impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process’ ” (Matter of Gordon, 100 NY2d at 242 [citations omitted]). This threshold requirement consists of “ ‘a pragmatic evaluation ... of whether the “decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury” ’ ” (id.). Second, “there must be a finding that the apparent harm inflicted by the action ‘may not be “prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” ’ ” (id.).

The proper application of the test announced in Gordon requires an understanding of the factual posture of that case. Gordon involved a challenge to a Town Board’s positive declaration of potential significant environmental effects concerning proposed land use permit applications, and the Board’s requirement that the property owners conduct a DEIS (100 NY2d at 242). The Board had declared itself as a lead SEQRA agency when issuing the declaration, notwithstanding that it had previously advised the Department of Environmental Conservation (DEC) that it did not wish to assume the role of lead agency and requested that DEC serve in such capacity (id. at 240-241). In response to the Board’s request, DEC assumed lead agency status and eventually issued a negative environmental impact declaration, along with wetland permits to the property owners (id. at 240-242). When the owners then sought coastal erosion permits, the Board issued the positive declaration (id.).

This Court concluded that the Board’s administrative action was ripe for judicial review because the Board’s SEQRA declaration imposed an obligation on the petitioners to prepare and submit a DEIS, after they “had already been through the coordinated review process and a negative declaration had been issued by the DEC as lead agency,” and where no apparent further proceedings would remedy the injury caused by the unnecessary and unauthorized expenditures associated with conducting a DEIS (id. at 243). Thus, Gordon’s analysis and its import must be considered in light of the Court’s recognition that the administrative action in that case was potentially unauthorized because “the Board may not have had jurisdiction to conduct its own SEQRA review,” given the existence of a prior negative declaration by a facially appropriate lead agency (id.).

Hoping to repeat the success of the property owners in Gordon, Raneo argues that it meets the two requirements as adopted in that case. Raneo claims that the Town’s positive declaration imposes upon it an affirmative obligation to prepare a DEIS, at significant cost to Raneo, both as a lump sum of between $75,000 and $150,000, and as a percentage of the rentals collected under the parcel one lease. We agree that the declaration has imposed an obligation on Raneo in satisfaction of the first requirement of our ripeness-for-review analysis.

Raneo next argues that the Town Board’s declaration meets Gordon’s second requirement because, even assuming Ranco’s application is approved and parcel one is rezoned for highly industrialized uses, Raneo cannot recoup the costs incurred and time spent on conducting a DEIS. Of course that may be true, but it is insufficient, without more, to distinguish Ranco’s case from any other preliminary administrative action. Indeed, Ranco’s approach would lead to convergence of the two requirements set forth in Gordon by reducing the analysis to whether a petitioner will incur unrecoverable costs. The inevitable result would be that every positive declaration requiring the creation of a DEIS would be ripe for review because the preparation of a DEIS by its nature carries financial costs that generally cannot be recouped, regardless of the outcome of the SEQRA process and the ultimate determination on a petitioner’s zoning application. However, courts should seek to avoid this type of “piecemeal review of each determination made in the context of the SEQRA process [which] would subject it to ‘unrestrained review . . . resulting] in significant delays in what is already a detailed and lengthy process’ ” (Matter of Guido v Town of Ulster Town Bd., 74 AD3d 1536, 1537 [3d Dept 2010]).

Moreover, and contrary to Ranco’s suggestion, the ruling in Gordon was never meant to disrupt the understanding of appellate courts that a positive declaration imposing a DEIS requirement is usually not a final agency action, and is instead an initial step in the SEQRA process (see e.g. Matter of Rochester Tel. Mobile Communications v Ober, 251 AD2d 1053, 1054 [4th Dept 1998]). Instead, Gordon stands for the proposition that where the positive declaration appears unauthorized, it may be ripe for judicial review, as, for example, when the administrative agency is not empowered to serve as lead agency (see Gordon, 100 NY2d at 242-243), when the proposed action is not subject to SEQRA (Matter of Center of Deposit, Inc. v Village of Deposit, 90 AD3d 1450, 1452 [3d Dept 2011]), or when a prior negative declaration by an appropriate lead agency appears to obviate the need for a DEIS suggesting that further action is improper (Gordon, 100 NY2d at 243).

Raneo does not claim the declaration is unauthorized or that the property is not subject to SEQRA, nor does it present any other basis to conclude that the Town Board acted outside the scope of its authority. Therefore, the matter is not ripe for judicial review. Based on this decision we need not address the merits of Ranco’s challenge to the Town Board’s action.

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

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

Order affirmed, with costs.

      . A “Lead agency” under SEQRA is “principally responsible for undertaking, funding or approving an action, and therefore responsible for determining whether an environmental impact statement is required in connection with the action, and for the preparation and filing of the statement if one is required” (6 NYCRR 617.2 [u]).

      . A DEIS is an initial statement, prepared by either the lead agency or the applicant, that describes possible “significant adverse environmental impacts,” which may be caused by the proposed action (see 6 NYCRR 617.2 [n]). The DEIS includes alternatives and mitigation measures, and is circulated for review and comment to assist the agency in determining the environmental consequences of the proposed action (see id.).


author: Chief Judge DiFiore.

text:
    [49 NE3d 1189, 29 NYS3d 897]
    In the Matter of Grant Springer, Appellant, v Board of Education of the City School District of the City of New York et al., Respondents.
    Argued February 17, 2016;
    decided April 5, 2016

      Richard E. Casagrande, General Counsel, New York State United Teachers, New York City (Michael J. Del Piano and Maria Elena Gonzalez of counsel), for appellant.

      Zachary W. Carter, Corporation Counsel, New York City (Devin Slack, Richard Dearing and Cecelia Chang of counsel), for respondents.
   OPINION OF THE COURT

Chief Judge DiFiore.

The issue presented on this appeal is whether a tenured school teacher who resigns from teaching, and then subsequently applies and is hired to teach at another school, is automatically entitled to tenure in the new position. Specifically at issue in this determination is paragraph (29) of New York City Board of Education Chancellor’s Regulation C-205 (C-205 [29] or the regulation). The regulation provides that a tenured teacher who resigns “remain [s] tenured,” but requires the teacher to first submit a written request to withdraw his or her resignation, subject to a medical examination and the approval of the Chancellor. We hold that a tenured teacher who resigns, and later seeks to return as a tenured teacher, must strictly comply with the regulation and submit a written request to withdraw his or her prior resignation.

I.

Petitioner was employed as a teacher in the catering license area at M288 — Food and Finance High School, located in Community School District No. 2 in Manhattan, beginning in September 2001. In January 2011, after achieving tenure, petitioner voluntarily resigned to pursue a career as a corporate chef. He had never been the subject of formal disciplinary charges nor had he ever received an annual rating of “unsatisfactory” prior to his resignation. Several months later, petitioner decided to return to teaching. After a stint as a substitute teacher, petitioner applied for full-time teaching positions in the summer of 2011.

In October 2011, petitioner was hired as a teacher in the catering license area at M415 — Wadleigh Secondary School for the Performing and Visual Arts, located in Community School District No. 3 in Manhattan. He was hired under his prior license and file number and at the same salary he received at the time of his resignation. Herma Hall, the principal of Wadleigh who hired petitioner, knew that he had resigned with tenure in January 2011.

During the 2011-2012 school year, Hall was replaced by a new principal, Tyee Chin. In April 2012, Chin informed petitioner that he believed petitioner did not have tenure. At that time, six months after his reinstatement, upon the advice of his union representative, petitioner submitted a form to withdraw his resignation. Respondents told petitioner that the form would not be processed because it was submitted too late. In May 2012, petitioner received a rating of “unsatisfactory” for the 2011-2012 school year. As a result, petitioner was terminated effective June 22, 2012. Prior to his termination, petitioner was not served with disciplinary charges in accordance with the procedures for removing a tenured teacher set forth in Education Law § 3020-a.

Petitioner never filed a grievance or other administrative proceeding related to the events detailed above. Instead, in October 2012, petitioner brought this CPLR article 78 proceeding against respondents. Petitioner argued that under paragraphs (28) and (29) of Chancellor’s Regulation C-205, as well as the collective bargaining agreement (CBA) between the Board and the teachers’ union, he “was a tenured teacher upon his reappointment” and, therefore, “[rjespondents’ decision to terminate his employment without just cause and without following the procedures” in Education Law § 3020-a was unlawful and “arbitrary and capricious, or an abuse of discretion.” Petitioner sought reinstatement to his teaching position at Wadleigh and related relief.

Respondents cross-moved to dismiss the petition, contending, among other things, that the petition failed to state a cause of action and that petitioner failed to exhaust his administrative remedies. Supreme Court granted the cross motion, denied the petition, and dismissed the proceeding, concluding that the petition was “premature for failure to exhaust administrative remedies.” Petitioner appealed.

The Appellate Division unanimously affirmed, but on a different ground (121 AD3d 473 [1st Dept 2014]). The Court concluded that “[t]here is no question that petitioner failed to comply with . . . C-205 (28) and (29), which govern withdrawal of a resignation and restoration to tenure. Hence, when petitioner was rehired by a principal, his tenure was not ipso facto restored” (id. at 473-474). That same panel granted the portion of petitioner’s subsequent motion seeking leave to appeal to this Court, certifying the following question of law: “Was the [Appellate Division] order . . . properly made?” We now affirm.

II.

Pursuant to Education Law § 2590-h, the Chancellor has the authority to promulgate regulations “necessary or convenient” to the administration of the public school system (Education Law § 2590-h [16]). Relevant to this appeal, paragraph (28) of Chancellor’s Regulation C-205, entitled “Withdrawal of Resignation Generally,” describes the general procedure for withdrawing a resignation. Paragraph (29) of Chancellor’s Regulation C-205, entitled “Withdrawal of Resignation Within Five Years by Tenured Staff,” describes the procedure for the withdrawal of resignation by tenured teachers to permit them to return to teaching with tenure.

There is no dispute that petitioner was a tenured teacher upon his resignation in January 2011; the question is whether, upon his hire at a new school in October 2011, he was reinstated with tenure. C-205 (29) provides, in relevant part:

“[A] non-supervisory pedagogical employee who had attained permanent tenure prior to the date of resignation shall . . . remain tenured and, upon written request, be permitted to withdraw such resignation subject only to medical examination and the approval of the Chancellor, provided that reinstatement is made on or before the opening of school in September next following five years after the effective date of resignation. If reinstatement is made after this date, a two year probationary period will be required.”

By its very terms, C-205 (29) provides that a tenured teacher who has resigned may avoid a probationary term in a new position by submitting a “written request” to withdraw the prior resignation. That request will be “subject only to medical examination and the approval of the Chancellor,” so long as reinstatement is made in accordance with the timing requirements set forth in the regulation. The CBA between the Board and the teachers’ union contains a parallel provision.

Petitioner argues that he complied with the requirements of the regulation when he applied in writing for various teaching positions. He maintains that when the Board rehired him in October 2011, within five years of his prior resignation, the Board effectively accepted the withdrawal of his resignation. Therefore, petitioner submits that he was a tenured teacher at the time of his termination in June 2012 and that the Board violated his due process rights by failing to provide him with the procedural protections required by Education Law § 3020-a.

According to respondents, petitioner ignores the important role of the written request for withdrawal, most notably the Chancellor’s role in the process. By virtue of the written request, the Chancellor is afforded the opportunity to assess the teacher’s work history and competence and may reject a request to withdraw a resignation. Further, the procedure permits important hiring information to be conveyed to a hiring principal, including the fact that the teacher would have full tenure rights in the teacher’s new position.

III.

The tenets of statutory construction apply equally to administrative rules and regulations (Matter of Cortland-Clinton, Inc. v New York State Dept. of Health, 59 AD2d 228, 231 [4th Dept 1977]). We construe the regulation in accordance with its plain language (see Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 107 [1997]). By its plain terms, C-205 (29) requires submission of a written request for withdrawal of resignation prior to a teacher’s reinstatement with tenure. “It is an accepted rule that all parts of a statute are intended to be given effect and that a statutory construction which renders one part meaningless should be avoided” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 515 [1991]). If, as petitioner argues, post-resignation application and hiring alone were sufficient to withdraw a prior resignation, then the language of the regulation requiring “written request . . . subject only to medical examination and the approval of the Chancellor,” would have no meaning. C-205 (29)’s provision that a written request be subject to the Chancellor’s approval gives the Chancellor the opportunity to reject a request to withdraw a resignation. Under petitioner’s theory, the Chancellor’s role in the process is entirely eliminated. Petitioner’s interpretation of the regulation is not in keeping with its plain language.

Because petitioner did not withdraw his resignation through the mechanism of a written request, the requirements of C-205 (29) were not met and petitioner was not reinstated with tenure.

This result does not minimize the public policy interests that have prompted this Court to “construe the tenure system broadly in favor of the teacher, and to strictly police procedures which might result in the corruption of that system” (Ricca v Board of Educ. of City School Dist. of City of N.Y., 47 NY2d 385, 391 [1979]; see Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, 454 [1993]). Nor does it undermine this Court’s recognition that a tenured teacher has a “protected property interest in [his or] her position” and right to retain that position absent discharge in accordance with Education Law § 3020-a (Gould, 81 NY2d at 451). As we have also recognized, a teacher may “relinquish [his or] her tenured rights . . . voluntarily by resigning” (id.). C-205 (29) contains the procedural requirements for a teacher who has voluntarily resigned from a tenured teaching position to be reinstated with tenure. Petitioner does not challenge the validity or constitutionality of the regulation itself, but argues only that he complied with the regulation by submitting applications for jobs and being hired to a new position. He did not. Absent a written request to withdraw his resignation, a request subject to the Chancellor’s approval, petitioner failed to meet the requirements of C-205 (29) for reinstatement with tenure.

We do not address the effect of petitioner’s April 2012 written request to withdraw his resignation, which he submitted six months after he was hired at Wadleigh. Any argument related to that request is not before the Court in this proceeding.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question not answered as unnecessary.

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

Order affirmed, with costs, and certified question not answered upon the ground that it is unnecessary.