author: Jones, J.

text:
    [947 NE2d 130, 922 NYS2d 239]
    The People of the State of New York, Respondent, v Jair Williams, Appellant.
    Argued February 9, 2011;
    decided March 31, 2011

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Warren S. Landau and Lynn W.L. Fahey of counsel), for appellant.
    Appellant was denied his rights to due process, a jury trial, and the effective assistance of counsel when, during jury deliberations, the court (a) gave lengthy substantive instructions in response to the jury’s first reported verdict without giving the defense advance notice and an opportunity to be heard; (b) delivered a coercive Allen charge, exhorting the jurors to eschew emotion and honor their oath; (c) allowed deliberations in open court in response to an incomplete verdict sheet; and (d) in numerous ways, signaled its personal view that appellant should be convicted of murder. (Mullane v Central Hanover Bank & Trust Co., 339 US 306; Fillippon v Albion Vein Slate Co., 250 US 76; People v O’Rama, 78 NY2d 270; Curtis v Duval, 124 F3d 1; Connecticut v Doehr, 501 US 1; Mathews v Eldridge, 424 US 319; North Ga. Finishing, Inc. v Di-Chem, Inc., 419 US 601; Matter of Jung [State Commn. on Jud. Conduct], 11 NY3d 365; People v David W., 95 NY2d 130; People v Kisoon, 8 NY3d 129.)

      Charles J. Hynes, District Attorney, Brooklyn (Phyllis Mintz and Leonard Joblove of counsel), for respondent.
    I. Defendant failed to preserve his claim that the statutory requirement of notice to counsel that applies when a court responds to a jury request for instruction or information also applies when the court responds to a jury’s rendition of a defective verdict. In any event, that claim is meritless. (People v Harris, 98 NY2d 452; People v Laraby, 92 NY2d 932; People v Padro, 75 NY2d 820; People v Patterson, 39 NY2d 288, 432 US 197; People v Kelly, 5 NY3d 116; People v Antommarchi, 80 NY2d 247; People v Ahmed, 66 NY2d 307; People v Michael, 48 NY2d 1; People ex rel. Battista v Christian, 249 NY 314; People v Fleming, 70 NY2d 947.) II. Defendant failed to preserve his claim that the Allen charge was improper. In any event, the claim is without merit. (People v Tonge, 93 NY2d 838; People v Tevaha, 84 NY2d 879; People v Pagan, 45 NY2d 725; People v Hoke, 62 NY2d 1022; People v Kisoon, 8 NY3d 129; People v Weinberg, 83 NY2d 262; People v Malloy, 55 NY2d 296; Allen v United States, 164 US 492; People v Aponte, 2 NY3d 304; People v Faber, 199 NY 256.) III. Defendant failed to preserve his claim that the court erred by directing the foreperson to complete the verdict sheet in open court and that the court thereby caused public deliberations to occur. In any event, that claim is meritless. (People v Kelly, 5 NY3d 116; People v Harris, 98 NY2d 452; People v Laraby, 92 NY2d 932; People v Padro, 75 NY2d 820; People v Alfaro, 66 NY2d 985; People v Thomas, 50 NY2d 467; People v Agramonte, 87 NY2d 765.) IV. Defendant failed to preserve his claim that the court’s supplemental instructions, as a whole, were improper. In any event, the claim is meritless. (People v Chin, 67 NY2d 22; People v Crimmins, 36 NY2d 230; People v Shilitano, 218 NY 161; People v Payne, 3 NY3d 266.)
   OPINION OF THE COURT

Jones, J.

Defendant was indicted for murder and other charges stemming from a shooting at a Brooklyn dance club in which a woman was killed and a man, with whom she was dancing, was wounded. The People theorized that the male victim was the intended target and the female victim was accidentally killed by a bullet which struck her after passing through him.

At trial, the court submitted the following seven counts to the jury: (count 1) murder in the second degree (depraved indifference murder as to female victim); (count 2) murder in the second degree (intending to cause male victim’s death, defendant caused female victim’s death); (count 3) manslaughter in the first degree (intending to cause serious physical injury to male victim, defendant caused female victim’s death); (count 4) manslaughter in the second degree (defendant recklessly caused female victim’s death); (count 5) attempted (intentional) murder in the second degree (as to the male victim); (count 6) assault in the first degree (defendant intended to cause and caused serious physical injury to male victim); and (count 7) criminal possession of a weapon in the second degree. Counts 1-4 relate to the female victim, while counts 5 and 6 relate to the male victim.

On April 30, 2002, the second day of deliberations, the jury announced its verdict. The jury acquitted defendant of both second-degree murder counts (depraved indifference murder and intentional murder on a transferred intent theory), but convicted defendant of manslaughter in the first degree and attempted intentional murder in the second degree. The jury also acquitted defendant of assault in the first degree and criminal possession of a weapon in the second degree. Without notifying the parties of its intended response to the jury verdict, or of the instructions it proposed to give to the jury, the court responded to the jury’s verdict. Defendant did not object to the court’s not providing such notice.

The court explained to the jury that by its verdict acquitting defendant of transferred intent murder, it found that defendant did not intend to kill the male victim; whereas, by the jury’s finding defendant guilty of attempted murder, it found that defendant had the requisite intent to kill the male victim. The court further explained that by acquitting defendant of first-degree assault, the jury found that defendant lacked the intent to cause the male victim serious physical injury; whereas the jury’s guilty verdict on the first-degree manslaughter count necessarily required a finding that defendant intended to cause the male victim serious physical injury.

The court then advised the jury that it would not accept the verdict at that time, explained the inconsistencies in the verdict and the concept of transferred intent to the jury, instructed the jury to reconsider and decide what the People had proven regarding defendant’s state of mind, and directed the jury to resume deliberations. After the jury exited, defense counsel argued that the court’s decision not to accept the verdict was a violation of defendant’s right to a fair trial. In counsel’s view, the verdict “should stand.”

After deliberating for about an hour and a half, the jury sent a note to the court announcing it could not reach a unanimous verdict. Before bringing the jury back in, the court stated to counsel it would give an Allen charge and instruct the jury to resume deliberations. Defense counsel mounted a general objection to the proposed Allen charge, arguing the court should only instruct the jury to continue its deliberations. The court disagreed and issued an Allen charge to the jury. Defendant raised no objection that the actual charge given was coercive.

On the third day of deliberations, the jury reached a second verdict. According to the verdict sheet, the jury convicted defendant of transferred intent murder, attempted second-degree murder, and second-degree criminal possession of a weapon, but acquitted him of depraved indifference murder, first-degree manslaughter, second-degree manslaughter, and first-degree assault. The court informed the jury that the verdict sheet was not completed in accordance with its instructions and the instructions on the verdict sheet. The court stated, “I told you, if you found the defendant guilty of Count 1 and Count 2 [murder counts] return no verdict on Count 3 and Count 4 [manslaughter counts] . . . , leave the space blank on that verdict sheet.” After explaining the error to the jury, the court returned the jurors to the jury room with a new verdict sheet.

Later that day, the jury returned its third (and final) verdict, but the verdict sheet did not indicate a verdict for count 1 (depraved indifference murder) and count 6 (first-degree assault). The court explained that the jury had to return a verdict on counts 1 and 6 and directed that if it had actually reached a verdict on those counts, the jury foreperson should complete the verdict sheet “at this time.” After talking to some of the other jurors, the jury foreperson completed the verdict sheet in open court. Specifically, the jury foreperson checked “not guilty” on the two counts the jury overlooked.

Defendant was convicted of second-degree murder (on a transferred intent theory), second-degree attempted murder and weapon possession. He was sentenced to 25 years to life in prison. The Appellate Division affirmed (64 AD3d 734 [2009]), and a Judge of this Court granted defendant leave to appeal (14 NY3d 773 [2010]).

On appeal, defendant argues he was denied his constitutional right to due process, a fair trial, and the effective assistance of counsel because the trial court (1) contrary to CPL 310.30, did not afford defense counsel notice of and the opportunity to discuss the court’s proposed response to the initial verdict before the court addressed the jury, (2) improperly directed the jury foreperson to complete the verdict sheet in open court and caused the jury to deliberate in public (in violation of the settled principle requiring jurors to deliberate in secret outside the courtroom), (3) gave a coercive Allen charge, and (4) signaled, through its supplemental instructions given in response to the first defective verdict, that defendant should be convicted of murder. These arguments are unavailing.

Defendant’s primary contention is that the jury’s reporting of a verdict inconsistent with the trial court’s instructions was the functional equivalent of a jury request for further instruction or information, and that, consequently, defendant was entitled to notice and a chance to be heard pursuant to CPL 310.30. Defendant further maintains that this argument does not have to be preserved because, similar to the problem contemplated under CPL 310.30, the alleged error goes to the mode of proceedings. For the following reasons, we disagree. First, defendant’s argument disregards the plain language of CPL 310.30 and 310.50 (2), and would render CPL 310.50 (2) superfluous. CPL 310.30 applies to specific “request[s]” by the jury “for further instruction or information” by the court in response to a problem or concern identified by the jury; whereas CPL 310.50 (2) applies when a jury “renders a verdict which in form is not in accordance with the court’s instructions or which is otherwise legally defective.” That is, CPL 310.50 (2) addresses problems in a verdict of which the jury is necessarily unaware. Here, the trial court’s explanation to the jury was a response to a verdict that was inconsistent with the court’s instructions, not a response to a request for further instruction or information. Thus, the court’s response was governed by CPL 310.50 (2), not section 310.30.

Second, while CPL 310.30 imposes upon the court the specific statutory duty to give the parties notice of the jury’s request for further instruction or information before the court responds to the request (see People v O’Rama, 78 NY2d 270, 276-277 [1991] [Court addressed the scope of the CPL 310.30’s notice requirement]), CPL 310.50 (2) does not. Section 310.50 (2) only provides that where a jury returns an inconsistent or legally defective verdict, “the court must explain the defect or error and must direct the jury to reconsider such verdict, to resume its deliberation for such purpose, and to render a proper verdict.” The trial court here was not obligated to discuss with counsel its proposed explanation in response to the initial verdict prior to the court’s addressing the jury.

Third, the Legislature deliberately differentiated between what is required of the court pursuant to CPL 310.30 and CPL 310.50 (2), respectively. By not including (or incorporating) CPL 310.30’s notice requirement within the text of CPL 310.50 (2), the Legislature made a conscious choice that the notice requirement shall apply only to the court’s response to a jury’s request for further instruction or information, and not to the court’s response to a jury’s rendition of an inconsistent or defective verdict.

Defendant also claims that the trial court improperly directed the jury foreperson to complete the verdict sheet in open court and caused the jury to deliberate in public. There is nothing in the record suggesting that the court’s direction called for or encouraged deliberations among the jurors. Further, the record does not show that any public deliberations in fact occurred. What the record shows is that there was a short (5 to 15 seconds) discussion among jurors after the court asked the foreperson to complete a verdict sheet that had not been filled out as to counts for which defendant was ultimately acquitted-, as such, the conversation among the jurors was harmless.

In any event, the trial court, in directing the jury foreperson to indicate a verdict as to counts 1 and 6, asked that the foreperson perform what amounts to a ministerial (or clerical) act, since CPL 310.50 (3) converts any incomplete counts into acquittals. We hold that the performance of the instant ministerial act was not violative of the rule requiring jurors to deliberate in secret outside the courtroom.

Defendant’s remaining contentions are not preserved for appellate review.

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

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

Order affirmed.

      . CPL 310.30 provides:
      “At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury’s consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper. With the consent of the parties and upon the request of the jury for further instruction with respect to a statute, the court may also give to the jury copies of the text of any statute which, in its discretion, the court deems proper.”

      . CPL 310.50 (2) provides:
      “If the jury renders a verdict which in form is not in accordance with the court’s instructions or which is otherwise legally defective, the court must explain the defect or error and must direct the jury to reconsider such verdict, to resume its deliberation for such purpose, and to render a proper verdict. If the jury persists in rendering a defective or improper verdict, the court may in its discretion either order that the verdict in its entirety as to any defendant be recorded as an acquittal, or discharge the jury and authorize the people to retry the indictment or a specified count or counts thereof as to such defendant; provided that if it is clear that the jury intended to find a defendant not guilty upon any particular count, the court must order that the verdict be recorded as an acquittal of such defendant upon such count.”


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [947 NE2d 149, 922 NYS2d 258]
    The People of the State of New York, Respondent, v Zufer Cecunjanin, Appellant.
    Argued February 17, 2011;
    decided April 5, 2011

      POINTS OF COUNSEL

      Kindlon Shanks & Associates, Albany (Terence L. Kindlon and Kathy Manley of counsel), for appellant.
    I. The attempted sexual abuse conviction was based on legally insufficient evidence of physical helplessness. (People v Littebrant, 55 AD3d 1151; People v Chapman, 54 AD3d 507; People v Teicher, 52 NY2d 638; People v Huurre, 193 AD2d 305, 84 NY2d 930; People v Thomas, 21 AD3d 643; People v Himmel, 252 AD2d 273; People v Ferrer, 250 AD2d 860; People v Conto, 218 AD2d 665; People v Clyburn, 212 AD2d 1030.) II. The convictions should be reversed based on ineffective assistance of counsel. (People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Caban, 5 NY3d 143; People v Hull, 71 AD3d 1336; People v Bartley, 298 AD2d 160; United States v Tarricone, 996 F2d 1414; People v Clarke, 66 AD3d 694; People v Dean, 50 AD3d 1052; People v Tillman, 179 AD2d 886; People v Jenkins, 68 NY2d 896.) III. The trial court failed to adequately investigate possible juror misconduct. (People v Rodriguez, 100 NY2d 30; People v Arnold, 96 NY2d 358; People v Estella, 68 AD3d 1155; People v Rivera, 304 AD2d 841; People v Littebrant, 55 AD3d 1151; People v Maragh, 94 NY2d 569; People v Mosley, 56 AD3d 1140; People v Paulick, 206 AD2d 895.)

      Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel), for respondent.
    I. Appellant’s conviction for attempted sexual abuse was supported by legally sufficient evidence of physical helplessness. (People v Ficarrota, 91 NY2d 244; People v Contes, 60 NY2d 620; People v Zeagers, 248 AD2d 739; People v Baker, 251 AD2d 592; People v Reeves, 236 AD2d 635; People v Bleakley, 69 NY2d 490; People v Borthwick, 51 AD3d 1211; People v Chapman, 54 AD3d 507; People v Teicher, 52 NY2d 638.) II. Appellant was afforded meaningful representation as is required by the State and Federal Constitutions. (People v Benevento, 91 NY2d 708; People v Satterfield, 66 NY2d 796; People v Garcia, 187 AD2d 868; People v Hull, 71 AD3d 1336; People v Baldi, 54 NY2d 137; People v Figueroa, 187 Misc 2d 539.) III. Appellant was afforded a fair trial and was not prejudiced by any juror misconduct. (People v Rivera, 304 AD2d 841; People v Rodriguez, 100 NY2d 30.)
   OPINION OF THE COURT

Smith, J.

At defendant’s trial, the People contended, and the jury found, that he had attempted to subject a physically helpless woman to sexual contact. The evidence fails to support the jury’s finding on this issue, and we therefore vacate defendant’s conviction for attempted sexual abuse.

I

The alleged victim, whom we will call Catherine, went with friends to dance at a bar defendant owned. She had been drinking before she arrived at the bar, continued after she got there, and became extremely drunk. A blood test taken shortly after the events at issue here showed a blood alcohol concentration of .267%. (A driver is considered intoxicated with a .08% concentration [Vehicle and Traffic Law § 1192 (2)].)

Defendant and Catherine were acquaintances, and they engaged in some mild displays of affection after she arrived at the bar; Catherine hugged him, and permitted him to put his arm around her shoulders. But the People presented evidence that, as Catherine showed more severe signs of intoxication, defendant became more aggressive. He made “rude comments” to her as she sat on a bar stool drinking, and when she tried to get up to find one of her friends he prevented her by holding her wrist. He tugged on her shirt, and tried to put his hands under it. He held her chin, and tried to turn it towards him. He touched her thighs around where her shorts ended, and kissed her once. Holding her by her wrist or waist, he led her to a nearby storage room, pulled her in and closed the door.

Catherine found herself in the storage room with defendant and another man. Defendant held her wrist; the other man pulled at (but did not remove) her shorts; one or both of them pulled at her shirt. Defendant tried to put his hands under her shirt, and both men tried to kiss her. They asked her to go upstairs with them. She refused to go upstairs, and she resisted their physical advances by sitting on the floor. At one point she tried to leave the room but was unable to open the door (though the door had no lock). When Catherine’s cell phone rang, defendant prevented her from answering, and took the phone away. The encounter ended after one of Catherine’s friends called her family, and her father arrived and led her out.

Catherine did not describe her own mental or physical condition except to say that “it was pretty blurry” from around the time defendant’s aggressive conduct began. Two of her friends, who observed her as she sat on the bar stool, supplied more information. One said that she was “slouched over in the seat” “very kind of looking out of it,” that “her head was bobbing back and forth” and that “she seemed very kind of lifeless.” The other friend gave a similar description, adding that Catherine did not respond when someone called her name, that at one point she slipped off the stool, and that defendant helped her back up. Catherine’s friends could not see her when she was in the storage room; Catherine’s own testimony does not suggest that she was ever unconscious, or too weak to offer resistance, during that part of the encounter.

Defendant was indicted for attempted sexual abuse in the first degree, unlawful imprisonment in the second degree and forcible touching. The jury convicted him on the first two counts, and, in compliance with the trial judge’s instructions, did not reach the third. The Appellate Division affirmed the conviction and sentence (67 AD3d 1072 [2009]). A Judge of this Court granted leave to appeal, and we now modify the judgment to vacate the conviction for attempted sexual abuse.

II

Defendant was charged with, and convicted of, an attempt to violate Penal Law § 130.65 (2), which says:

“A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact . . .
“When the other person is incapable of consent by reason of being physically helpless . . . .”

“Sexual contact” and “physically helpless” are defined in section 130.00 of the Penal Law. “ ‘Sexual contact’ means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” (Penal Law § 130.00 [3]). “ ‘Physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act” (Penal Law § 130.00 [7]).

There is no evidence, and the People have never claimed, that defendant actually subjected Catherine to sexual contact. He was charged only with an attempt to commit sexual abuse, not with the completed crime. This raises a question: If a person is physically helpless, how can an attempt to subject her to sexual contact fall short of success? It could theoretically happen—for example, a third person could intervene—but the evidence does not show that it happened here.

There is no evidence that Catherine was physically helpless at any time after she entered the storage room. The People’s case must therefore depend on what happened earlier, while she sat on a bar stool. We assume that the testimony of her friends— that she was slouched and unresponsive, with her head bobbing back and forth, and that she once slid off the stool—would support a finding that there were times when she became physically helpless while she was sitting there. There is no evidence, however, that defendant tried to subject her to sexual contact during any of those times. The only evidence of physical advances that Catherine was unable to resist is the testimony of one of her friends. That witness said that, while Catherine was “kind of lifeless,” defendant had his hands “under her shirt,” but it is clear in context that she was not saying he touched Catherine’s breasts; the witness added that defendant “leaned over and . . . gave her a kiss,” eliciting no response from Catherine. The witness was then asked: “Did he touch her in any other way that you saw?” The answer was no.

The People argue that the conviction for attempted sexual abuse can be sustained on the basis of the following passage from Catherine’s testimony:

“I just remember holding my arms up like this because he was trying to put like his hands under my shirt. I would hold my arms up close to me like to block putting his hands in my shirt.”

The People thus argue, in substance, that Catherine was physically helpless at the moment she prevented defendant from fondling her. The argument is self-refuting; she could not have blocked him if she were helpless. A reading of the record as a whole shows that Catherine may well have been physically helpless at some times, and that defendant may have attempted to subject her to sexual contact at other times, but there is no evidence that the two occurred together.

The People rely on People v Teicher (52 NY2d 638 [1981]), but the facts of that case are, in a critical way, the opposite of those present here. The defendant in Teicher was a dentist who abused his patients after putting them under sedation. One of his victims testified that, after losing consciousness, she became conscious again but was still weak from the drug’s effects. She testified that the defendant “lifted her hand and placed it on his pants directly over his penis” and that she “was able to pull her hand away” (id. at 644). We held that, though the victim was strong enough to remove her hand, “the trier of fact was entitled to infer that she lacked capacity to consent to the original touching because of her generally weakened condition” (id. at 646). But in this case, the evidence shows that, when defendant tried to subject Catherine to sexual contact, she could and did withhold her consent—with the result that the sexual contact did not occur.

Ill

What we have said requires us to vacate defendant’s conviction for attempted sexual abuse, and to dismiss that count of the indictment. Defendant contends that he is also entitled to a new trial on the charge of unlawful imprisonment, asserting that his counsel was ineffective and that the trial court failed to investigate allegations of juror misconduct. These arguments are without merit. Trial counsel’s performance was competent, and the trial judge’s handling of the juror misconduct claims was entirely appropriate.

Accordingly, the order of the Appellate Division should be modified to vacate defendant’s conviction for attempted sexual abuse in the first degree, and to dismiss the first count of the indictment, and otherwise affirmed. The case should be remitted to County Court for resentencing.

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

Order modified, etc.


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

text:
    [947 NE2d 140, 922 NYS2d 249]
    In the Matter of Ridge Road Fire District, Appellant, v Michael P. Schiano, as Hearing Officer Designated Pursuant to a Collective Bargaining Agreement between Ridge Road Fire District and Ridge Road Professional Firefighters Association IAFF, Local 3794, International Association of Firefighters, AFL-CIO, et al., Respondents.
    Argued February 16, 2011;
    decided April 5, 2011

      POINTS OF COUNSEL

      Coughlin & Gerhart, LLP, Binghamton (Mary Louise Conrow and Katelyn R. Dumont of counsel), for appellant.
    I. The appellate court erred by improperly reviewing the proceeding de novo, applying an incorrect standard of review and substituting its judgment for that of the Ridge Road Fire District when it overturned the District’s denial of General Municipal Law § 207-a benefits. (Matter of Miller v DeBuono, 90 NY2d 783; Matter of Kingston v Gorman, 17 AD3d 1079; Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 293 AD2d 37; Matter of Foresta v New York State Policemen’s & Firemen’s Retirement Sys., 95 AD2d 893; Matter of Root v Regan, 90 AD2d 654; Matter of De Giacomo v Regan, 84 AD2d 629, 55 NY2d 605; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Toys “R” Us v Silva, 89 NY2d 411; Matter of Berger v Board of Fire Commr. of the Jericho Fire Dist., 71 AD3d 881; Matter of Tezeno v City of Watertown, 37 AD3d 1122.) II. The Fourth Department violated public policy and the Taylor Law when it interfered with the collective bargaining agreement by changing the standard of review and deciding the matter de novo. (Matter of Antonopoulou v Beame, 32 NY2d 126; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Dye v New York City Tr. Auth., 88 AD2d 899; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Steelworkers v Rawson, 495 US 362; Matter of Green [Republic Steel Corp.— Levine], 37 NY2d 554; Matter of Roma v Ruffo, 92 NY2d 489; Matter of Miller v DeBuono, 90 NY2d 783.) III. The Fourth Department’s incorrect application of the standard of review has created an irreconcilable fissure within the appellate courts. (Matter of Price v Southwest Airlines, Inc., 66 AD3d 1267; Matter of Walls v Wing, 292 AD2d 624; Matter of Cocozzo v Ward, 162 AD2d 202; Matter of DeOliveira v New York State Dept. of Motor Vehs., 271 AD2d 607; Matter of Mize v State Div. of Human Rights, 33 NY2d 53; Matter of 3902 Long Beach Rd. v New York State Liq. Auth., 155 AD2d 463; State Div. of Human Rights v Dynasty Hotel, 222 AD2d 263; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207; Matter of Pierce [Utica Mut. Ins. Co.], 110 AD2d 1023; Matter of Joyce v European Auto Serv., 226 AD2d 952.)

      Trevett Cristo Salzer & Andolina P.C., Rochester (Daniel P. DeBolt and Lawrence J. Andolina of counsel), for respondents.
    I. The Fourth Department applied the correct standard. (Matter of Giorgio v Bucci, 267 AD2d 924; Matter of Williamson v City

      of Troy, 284 AD2d 649.) II. The hearing officer’s decision was not irrational. (Matter of Grella v Hevesi, 38 AD3d 113; Matter of Khan v New York State Dept. of Health, 286 AD2d 562; Matter of Silberfarb v Board of Coop. Educ. Servs., Third Supervisory Dist., Suffolk County, 60 NY2d 979; People v Shedrick, 104 AD2d 263; People v Cohen, 223 NY 406; Matter of Hauser v Town of Webb, 34 AD3d 1353; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227; Matter of White v County of Cortland, 97 NY2d 336.) III. The Fourth Department’s decision did not violate public policy or the Taylor Law. IV There is no irreconcilable fissure within the appellate courts. V. The Ridge Road Fire District’s position is contrary to the purpose of General Municipal Law § 207-a. (Matter of Park v Kapica, 25 AD3d 802.)
   OPINION OF THE COURT

Pigott, J.

Respondent Kevin Nowack, a firefighter employed by petitioner Ridge Road Fire District, claimed to have sustained a back injury while on duty on November 7, 2002. Specifically, Nowack claimed that the fire truck he was driving hit a “low spot,” manhole cover or pothole in the road, causing the truck’s air suspension seat to elevate and “shoot” downward, causing a “twinge” or “tightness” in his low back.

Nowack sought General Municipal Law § 207-a benefits, to which certain firefighters are entitled if they are “injured in the performance of [their] duties” (General Municipal Law § 207-a [1]). He completed an “accident-sickness packet” containing, among other things, an employee injury report, physician report and authorization for medical records. The District denied Nowack’s application finding that his complained-of injury was a preexisting one that he sustained while off duty.

Nowack requested a hearing with respect to the District’s denial of benefits in accordance with the Collective Bargaining Agreement (CBA) between the District and respondent Ridge Road Professional Firefighters Association IAFF, Local 3794. The CBA provides that a hearing officer “shall conduct the hearing in accordance with the established rules of evidence, consistent with the NYS Administrative Procedure Act,” and that “[i]t is the employee[’s] burden to prove [that he] is entitled to GML 207-a benefits.” The hearing was held before respondent hearing officer Michael Schiano. Nowack and the District each called witnesses and presented evidence relative to their respective theories of causation.

In his written decision, the hearing officer stated, incorrectly, that the standard of review was “whether or not substantial evidence was presented to override the Fire District’s Determination” (emphasis supplied), and concluded that there was and that Nowack was therefore entitled to section 207-a benefits. The District challenged this determination in a CPLR article 78 proceeding. Supreme Court granted the petition, annulled the decision, and remanded the proceeding, directing the hearing officer to apply the proper standard of review, namely, whether the District’s determination denying Nowack benefits was supported by substantial evidence.

On remand, the hearing officer’s second decision proffered the same analysis word-for-word as his first and stated the proper standard of review, but nonetheless concluded that the District’s denial of Nowack’s section 207-a benefits was not supported by substantial evidence. The District again challenged that determination and Supreme Court granted the District’s petition, vacated the decision and reinstated the District’s original denial of section 207-a benefits. Supreme Court held that the hearing officer’s decision was arbitrary and capricious, and noted that the District’s determination denying benefits “was supported by substantial evidence in the record as a whole despite the fact that there was conflicting medical evidence to support a contrary result.”

The Appellate Division reversed and dismissed the petition, holding that the District’s “denial of benefits, which was based on the determination that the disability was solely related to a prior non-work-related injury, [was] not supported by substantial evidence” (67 AD3d 1342, 1345 [4th Dept 2009]). This Court granted leave, and we reverse.

Under the CBA, the hearing officer was required to “conduct the hearing in accordance with the established rules of evidence, consistent with the [New York State] Administrative Procedure Act.” That Act provides, in relevant part, that “[n]o decision, determination or order shall be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with substantial evidence” (State Administrative Procedure Act § 306 [1] [emphasis supplied]). The parties here agree, and we therefore assume, that, as applied to this case, the statute requires the District’s denial of benefits to be upheld if substantial evidence supports it. Therefore, in accordance with this standard and in light of the CBA’s terms, the independent hearing officer was required to give deference to the District’s decision and Nowack bore the burden of establishing that the District’s denial determination had not been supported by substantial evidence.

This Court has defined “substantial evidence” as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, and “is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]). The standard “demands only that ‘a given inference is reasonable and plausible, not necessarily the most probable’ ” (Matter of Miller v DeBuono, 90 NY2d 783, 793 [1997], quoting Borchers and Markell, New York State Administrative Procedure and Practice § 3.12, at 51 [1995]).

Viewing this record as a whole, Supreme Court correctly held that the hearing officer’s decision, i.e. that the District’s denial of section 207-a benefits was not based on substantial evidence, was arbitrary and capricious. The District’s evidence consisted of testimony from its medical expert that Nowack’s back injury was not causally related to the November 2002 incident, but was instead attributed to a fractured lumbar vertebra he had sustained in an accident in 1993 and an August 4, 2002 injury. The battalion chief testified that, after Nowack told him that he was experiencing back pain, he prepared an initial report. During his investigation, Nowack did not relate the version of events he now claims is the cause of his injury— that the air suspension seat on a fire truck had malfunctioned— nor did he tell him that he hit a “low spot” or “pothole” in the road. The District offered the further testimony of its group battalion chief, who stated that he had contacted the District mechanic and a representative of the manufacturer, who each examined the seat and found nothing wrong with its operation or adjustment mechanisms. This evidence was significant in light of the testimony by Nowack’s neurosurgeon that if the accident did not occur in the manner that Nowack claimed, then he would not causally relate Nowack’s injury to a work-related incident. Based on the foregoing, it is clear that there was substantial evidence supporting the District’s denial of benefits, and the hearing officer’s conclusion to the contrary was irrational as a matter of law.

It is of no consequence that the record also indicates that there was evidence supporting Nowack’s contention. Quite often there is substantial evidence on both sides. The applicable standard here was whether the District’s denial of benefits was supported by substantial evidence. Thus, the dissent errs in suggesting that, because either side might reasonably have prevailed, we are required to uphold the hearing officer’s ruling. To the contrary, since, as all Judges of this Court agree, there is unquestionably substantial evidence supporting both sides’ positions, the hearing officer acted arbitrarily in deciding that none supported the District’s. The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

Chief Judge Lippman (dissenting).

This would seem to be an easy case. The decision of a hearing officer as to whether a firefighter is entitled to General Municipal Law § 207-a benefits, issued pursuant to a procedure outlined in a collective bargaining agreement (CBA), has been challenged as arbitrary under CPLR article 78. There is, as the majority acknowledges, evidence supporting the hearing officer’s decision, and, as the majority also acknowledges, “[q]uite often there is substantial evidence on both sides” (majority op at 500). In such cases, the decisions made by hearing officers are to be upheld, as the court’s role in an article 78 proceeding is not to decide which side has the most persuasive case, but simply to decide if the hearing officer acted arbitrarily. This appeal is no different in any meaningful respect—the hearing officer determined that the firefighter met his burden under the CBA, concluded that the firefighter was injured in the performance of his duties, and concluded on the record before him that the fire district’s “initial determination” denying the firefighter benefits was not supported by substantial evidence. Support for all of those conclusions is found in this record. Thus, the firefighter is, without question, entitled to receive his benefits.

Under this CBA, when a firefighter believes that he or she may be entitled to General Municipal Law § 207-a benefits, the Ridge Road Fire District (the District) makes what the CBA refers to as an “initial determination” with respect to benefits based on an “accident-sickness packet” completed by the firefighter. If, as here, the District denies benefits, the firefighter may take an appeal to a hearing officer to be chosen at random from a list of names attached to the CBA in an appendix. The hearing officer, pursuant to the CBA, conducts a hearing “in accordance with the established rules of evidence, consistent with the NYS Administrative Procedure Act.” There is no dispute that the CBA, by reference to the Administrative Procedure Act, directs the hearing officer to apply the substantial evidence standard to the District’s “initial determination,” nor should there be dispute that it is the hearing officer’s decision, made after the record is developed at the hearing, that the CBA provides may be “appeal[ed]” by either the firefighter or the District pursuant to CPLR article 78.

Unlike the “initial determination” made by the District’s review of the “accident-sickness packet” of forms and other documentation, the hearing officer’s decision is made after a full hearing. The hearing officer in this case took medical evidence from several physicians, heard testimony from various witnesses, including the firefighter and others who interacted with him on the day of the alleged accident, and reviewed evidence concerning the operation of and inspections of the air suspension seat. As every court that has reviewed this record has acknowledged, there is evidence supporting the contentions of each side.

The majority states, however, that “[i]t is of no consequence that the record also indicates that there was evidence supporting” (majority op at 500) the firefighter’s contention and the hearing officer’s decision. I disagree. When the majority states that “[t]he applicable standard here was whether the District’s denial of benefits was supported by substantial evidence” (majority op at 500), it is correct only insofar as that was the standard to be applied by the hearing officer. That is most certainly not the standard for the courts to apply in this CPLR article 78 proceeding challenging the hearing officer’s decision. The District’s decision is not before us; we are not faced with determining, as the majority would have it, “whether the District’s denial of benefits was supported by substantial evidence” (majority op at 500). Rather, we are faced with determining whether the hearing officer’s decision was arbitrary.

Moreover, the majority appears in great measure to base its approach to the standard of review on a perceived agreement between the parties as to how the hearing officer was to apply the substantial evidence standard (majority op at 498-499). However, the majority is mistaken; the parties here are not in agreement as to whether the District’s initial determination to deny benefits was to be upheld if substantial evidence supported it. As the majority notes, State Administrative Procedure Act § 306 (1) (borrowed by the parties and applied to the hearing officer’s job here only through the CBA’s reference to it), provides that the substantial evidence standard is to be applied “upon consideration of the record as a whole.” The record “as a whole,” however, did not even exist at the time the District made its initial determination; rather, the record was created at the hearing conducted by the hearing officer.

The hearing officer, who heard and weighed all of the evidence, determined that the firefighter met his burden under the CBA and was entitled to General Municipal Law § 207-a benefits. When that decision is challenged as arbitrary in a CPLR article 78 proceeding, courts are not to weigh the persuasiveness of the evidence. Here, for instance, the majority comments that certain testimony from the District’s battalion chief to the effect that he “contacted the District mechanic and a representative of the manufacturer, who each examined the seat and found nothing wrong with its operation or adjustment mechanisms” is “significant” (majority op at 499). The majority finds this evidence to be important “in light of the testimony” from the firefighter’s “neurosurgeon that if the accident did not occur in the manner” the firefighter claimed, then “he would not causally relate” the injury to the alleged “work-related incident” (majority op at 499). The evidence on that point, however, is not at all clear cut. The majority, without an apparent rationale, finds it less significant that the neurosurgeon testified that if the incident did occur as the firefighter claimed it did (and the hearing officer concluded that the firefighter did sustain his injuries in the performance of his duties), then he would tie the firefighter’s back injury to the work-related incident.

The conclusions to be reached from a detailed analysis of various portions of the testimony taken at the hearing is largely beside the point. This Court should not parse the relative significance or insignificance of the testimony the hearing officer heard. That was the role of the hearing officer and the entire purpose of holding a hearing. Other than to ascertain whether the hearing officer’s decision was arbitrary and capricious, it simply is not the judiciary’s job to weigh such conflicting evidence in an article 78 proceeding. The majority not only mistakes this Court’s role, it gives the “initial determination” the veneer of an evidentiary hearing and elevates it beyond what it was—a preliminary decision made on the basis of a packet of forms—while vitiating the role of the officer conducting the only full hearing in this case.

Pursuant to the CBA, the District’s “initial determination” is made by the “chief or his designee,” who “will review the accident-sickness packet” of forms submitted by the firefighter and review “any available medical records and interviews with any witnesses.” There was no testimony before the fire chief or his designee; testimony, like the testimony the majority relies upon, was only received by the hearing officer in the course of the full hearing. It was only during that hearing that evidence was marshaled, testimony was heard, and arguments relevant to the firefighter’s eligibility for General Municipal Law § 207-a benefits were made.

Given this CBA’s structure, by necessity the hearing officer was aware of the limited documentation that was before the fire chief or his designee when that determination was made. He was also in a position to compare that packet of forms to the fully developed record before him after the actual evidentiary hearing. It is from that vantage point that he is charged with determining whether or not substantial evidence supports the “initial determination” to deny benefits. To view the “initial determination” as the majority seems to—as a determination akin to a decision reached after review of a fully developed record that must be upheld by the hearing officer if it has arty meaningful support at all—is to render this CBA’s hearing process nonsensical. By the parties’ design, the outcome reached by the District after only a preliminary review of application materials was not intended to be the final determination; rather, the hearing officer’s decision reached after a full hearing was the final administrative determination that could be challenged in an article 78 proceeding. Thus, on this appeal, we are only to determine whether the hearing officer’s decision was arbitrary.

Once it is clear which decision is before us and what the standard of review is, the analysis is straightforward. We “have noted that rationality is the underlying basis for both the arbitrary and capricious standard and the substantial evidence rule” (Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227, 240 [1997]), and “where substantial evidence exists” to support a decision being reviewed by the courts, “that determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions” (Matter of Collins v Codd, 38 NY2d 269, 270 [1976]; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]). With respect to causation in this context, it is settled that the firefighter “need only prove a direct causal relationship between job duties and the resulting illness or injury,” and that preexisting “non-work-related conditions do not bar recovery” where the firefighter “demonstrates that the job duties were a direct cause of the disability” (Matter of White v County of Cortland, 97 NY2d 336, 340 [2002]).

As the hearing officer’s decision that the firefighter was injured in the course of performing his duties and was entitled to General Municipal Law § 207-a benefits was rational, I cannot join the majority’s determination to disturb it.

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

Order reversed, etc.


author: Pigott, J.

text:
    [947 NE2d 647, 922 NYS2d 873]
    In the Matter of Robert Thomas Woods, Appellant, v New York City Department of Citywide Administrative Services, Respondent.
    Argued February 16, 2011;
    decided April 5, 2011

      POINTS OF COUNSEL

      Brown & Gropper, LLP, New York City (James A. Brown of counsel), for appellant.
    I. The plain language of the Military Law confers upon appellant the right to be placed on a special eligible list. II. The appellate court below erred when it determined that appellant was required to satisfy the two-year military service requirement by the time his name was reached for certification in January 2008. (Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662.) III. The Military Law was intended to be liberally construed. (Jensen v General Elec. Co., 82 NY2d 77; Warren v International Bus. Machs. Corp., 358 F Supp 2d 301; 21948, LLC v Riaz, 191 Misc 2d 730.)

      Michael A. Cardozo, Corporation Counsel, New York City (Fay Ng, Pamela Seider Dolgow and Maxwell D. Leighton of counsel), for respondent.
    Since petitioner did not meet the minimum qualifications for appointment at the time his name was reached on the eligible list and at the time the last appointments were made off the list, the Department of Citywide Administrative Services properly denied petitioner’s request to be placed on a special eligible list pursuant to Military Law § 243 (7) and (7-b). (Matter of DeFrancis v D'Ambrose, 57 AD2d 804; Matter of Cotter v Watson, 282 App Div 292, 306 NY 681; Matter of Lombardi v City of Schenectady, 1 AD2d 24; Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Matter of Sherman v Leonard, 40 NY2d 1038; Matter of Bell v Nassau County Civ. Serv. Commn., 203 AD2d 285.)
   OPINION OF THE COURT

Pigott, J.

After petitioner passed a civil service examination, his name was placed on a list maintained by the respondent New York City Department of Citywide Administrative Services (DCAS) of those eligible to be appointed as a New York City firefighter. He was on military duty when his name was reached on the list. We hold that Military Law § 243 (7) required DCAS to place petitioner on a “special eligible list,” from which he could be certified for appointment after his military duty ended. It is irrelevant, under the governing statutes, whether he met the qualifications for appointment when his name was first reached, so long as he met them when the time to certify him for appointment arrived.

I.

On December 14, 2002, petitioner took an open competitive civil service examination to become a firefighter with the New York City Fire Department. One of the qualifications to be a firefighter is that a candidate, by the date of appointment, must have successfully completed 30 semester credits from an accredited college or university or obtained a four-year high school diploma and completed two years of honorable full-time U.S. military service. At the time petitioner took the examination, he had fulfilled neither of these requirements.

Petitioner passed the examination and was placed on the eligible list. The list was set to expire on May 5, 2008.

Petitioner enlisted in the U.S. Army in April 2006. In April 2007, while he was serving in the Army, the Fire Department notified petitioner by letter of its intent to appoint him from the eligible list. To be appointed, petitioner needed to complete certain medical and psychological testing. Petitioner’s mother responded to the letter and advised the Fire Department that her son was scheduled to be discharged from the Army in September 2008. She was told that upon his discharge, he should contact the Fire Department to complete the remaining parts of the examination.

On January 18, 2008, while he was still on active military duty, petitioner’s list number was reached for possible certification and appointment. All names certified on January 18, 2008 were later appointed to the Fire Department on January 21, 2008.

Petitioner was released from the Army in July 2008. Upon his release, petitioner contacted the Fire Department to take the medical and psychological parts of the examination and submit to a background investigation. In August 2008, petitioner filed an “Application Under State Military Law for Determination of Rights on Eligible List” with the DCAS, seeking a determination of his rights under Military Law § 243. That section provides that any person whose name is on an eligible list and comes up for certification while on duty shall be placed on a special eligible list provided he makes a request following termination of his military duty and during the period of his eligibility. DCAS denied petitioner’s request to be placed on a special eligible list on the ground that when his name had been reached on January 18, 2008, he had not completed two years of military service.

II.

Petitioner commenced this CPLR article 78 proceeding, challenging the determination of DCAS as arbitrary and capricious and in violation of section 243 (7) and (7-b) of the Military Law. Supreme Court denied the petition and dismissed the proceeding (24 Misc 3d 849 [2009]).

The Appellate Division, with two Justices dissenting, affirmed (72 AD3d 474 [1st Dept 2010]). The majority reasoned that at the time petitioner was reached for certification on January 18, 2008, and January 21, 2008, when final appointments from the list were made, petitioner had completed neither of the alternative requirements of the position. Thus, the court held that

“[i]n January 2008, petitioner could not have been certified, not because he was in military service, but because he had failed at that time to meet the minimum eligibility requirements. Thus, he was not qualified for placement on a special eligible list from which selection for the position of firefighter could be made, and respondent’s determination was not arbitrary or capricious” (id. at 475).

Petitioner appealed to this Court as of right, contending that DCAS was obligated to place him on a special eligible list because he qualified for such status pursuant to Military Law § 243 (7). We agree, and now reverse.

III.

Military Law § 243 (7) provides, in relevant part:

“Any person whose name is on any eligible list shall, while in military duty, retain his rights and status on such list. If the name of any such person is reached for certification during his military duty, it shall be placed on a special eligible list in the order of his original standing, provided he makes request therefor following termination of his military duty and during the period of his eligibility on such list” (emphasis added).

Here, it is undisputed that petitioner’s name appeared on the examination’s eligible list, and was “reached for certification” while he was serving in the military. Petitioner timely submitted the paperwork necessary for placement on a special eligible list after his discharge, thereby complying with the statutory requirements.

DCAS argues that petitioner was nonetheless ineligible to be placed on a special eligible list because he did not have the required two years of military service when his name was reached on the original eligible list. But DCAS has misconceived the statutory scheme. Section 243 (7) says “shall,” not “may,” and makes no exception for those who do not meet qualifications at the time their names are reached. It gives DCAS no discretion to refuse to put names on a special eligible list. Discretion is given by Civil Service Law § 50 (4) not to certify names of people who do not meet qualifications, but that discretion is exercisable at the time when a decision about certification is made—in this case, when petitioner had completed his military service and his name was or should have been reached on the special list. By then, petitioner had the necessary qualifications.

Accordingly, the order of the Appellate Division should be reversed, with costs, the petition granted, DCAS’s determination denying petitioner placement on a special eligible list annulled and the matter remitted to Supreme Court with directions to remand to DCAS for further proceedings in accordance with this opinion.

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

Order reversed, etc.