text:
    [64 NE3d 284, 41 NYS3d 464]
    The People of the State of New York, Respondent, v Steven Henderson, Appellant.
    Argued September 6, 2016;
    decided October 25, 2016

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City {Leila Hull of counsel), for appellant.

      Eric Gonzalez, Acting District Attorney, Brooklyn {Ann Bordley and Leonard Joblove of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

After a jury trial, defendant was convicted of rape in the first degree and criminal sexual act in the first degree (two counts). Prior to trial, defendant filed a CPL 30.30 motion to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial. The trial court, as relevant here, excluded the periods of delay for the DNA testing process as exceptional circumstances under CPL 30.30 (4) (g) and denied defendant’s speedy trial motion without a hearing. Defendant claims on direct appeal that he was denied effective assistance of counsel because his trial counsel’s motion to dismiss the indictment on CPL 30.30 grounds failed to argue that the People should be charged for certain periods of delay due to the testing of the DNA evidence by the Office of Chief Medical Examiner (OCME) in successive stages. The record does not support defendant’s contention.

Defendant was charged with acting in concert with multiple accomplices in a sexual assault. As the People explained at defendant’s arraignment on the indictment on January 7, 2009, OCME had generated one full male DNA profile from the sexual assault evidence collection kit and extra alleles were found on the semen samples from the victim’s jeans. Defendant then consented to provide his DNA exemplar. On June 24, 2009, the People stated that OCME had not yet finished its final report but reported that it was “a no-match.” The case was adjourned to August 13, 2009 for a final conference, and on that date, the People reported that OCME did not have its final report and had not reported the results of the DNA analysis. After inquiry from the court, the People explained that after receiving the testing results from the semen sample, additional testing had been performed on the fingernail screens.

As we have previously stated, “[v]ery rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation” (People v Turner, 5 NY3d 476, 478 [2005]). In People v Brunner (16 NY3d 820 [2011]), a case where defense counsel failed to file a CPL 30.30 motion entirely, we held that defendant’s ineffective assistance of counsel claim failed as there was “nothing clear cut about his CPL 30.30 claim” and “the governing law was unfavorable” (16 NY3d at 821).

Here, defendant argues that he was denied effective assistance of counsel because his trial counsel failed to argue that the June 24, 2009 and August 13, 2009 adjournments, totaling 86 days, were chargeable to the People due to their alleged failure to act with due diligence in securing DNA testing (see CPL 30.30 [4] [g]). Defendant’s claim that the People did not exercise due diligence is based on the supposition that the People did not seek testing of the fingernail screens as part of, or at the same time as, the sexual assault evidence collection kit and instead permitted OCME to do sequential testing of the evidence after defendant had been excluded from the semen sample. In essence, defendant contends that had defense counsel argued that those delays were chargeable to the People under CPL 30.30, the indictment would have been dismissed.

On this record, defense counsel was not ineffective for failing to raise the argument that the People were not acting with due diligence, as there is nothing in the record to demonstrate that the People were not diligent in requesting DNA testing on the evidence or that the manner in which the DNA testing was conducted by OCME was inconsistent with standard laboratory protocols. In addition, at the time of defendant’s CPL 30.30 motion, there already was Appellate Division authority holding that the period of time needed to obtain the results of DNA testing could be excluded from speedy trial computation as an exceptional circumstance (see e.g. People v Robinson, 47 AD3d 847 [2d Dept 2008], lv denied 10 NY3d 869 [2008]).

In sum, defendant’s assumptions as to the protocols for successive DNA testing are based on matters outside the record and beyond review on this appeal. The ineffective assistance of counsel claim that defendant presents to this Court is of the type where “it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10” (People v Brown, 45 NY2d 852, 854 [1978]).

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

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

Order affirmed.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [64 NE3d 286, 41 NYS3d 466]
    The People of the State of New York, Respondent, v Charles K. Wilson, Appellant.
    Argued September 8, 2016;
    decided October 25, 2016

      POINTS OF COUNSEL

      Charles T Noce, Conflict Defender, Rochester CKathleen P. Reardon of counsel), for appellant.

      Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), for respondent.
   OPINION OF THE COURT

Pigott, J.

In People v Harris (25 NY2d 175 [1969], affd 401 US 222 [1971]), this Court held that a statement obtained in violation of a defendant’s rights under Miranda v Arizona (384 US 436 [1966]) may be utilized for impeachment purposes on the cross-examination of a defendant whose testimony is inconsistent with the illegally obtained statement (see Harris, 25 NY2d at 177; see also People v Johnson, 27 NY2d 119, 121-122 [1970], cert denied 401 US 966 [1971]; People v Kulis, 18 NY2d 318 [1966]). In this appeal, defendant advocates for a bright-line rule that would preclude the People from utilizing on cross-examination or rebuttal any statement provided by the defendant to the police after the defendant refuses to waive his Miranda rights. We decline defendant’s invitation to adopt such a rule, and affirm the order of the Appellate Division.

L

On September 14, 2006, at approximately 9:00 p.m., complainant and three children were entering a home they shared when they were confronted by two armed men. The men demanded that complainant empty his pockets. Although complainant complied, one of the intruders shot him and one of the children. The intruders took complainant’s wallet and car keys and fled the house. One of the children locked the door, but an unidentified individual returned, kicked in the front door to gain entry, and shot complainant twice in the head.

Two days after the incident, Investigator Matthew Hill showed a photo array to one of the child witnesses. The child pointed to a photo of defendant and stated that “it kind of looks like him.” Five days later, Hill showed the same witness a different array containing a more up-to-date photograph of defendant, and the child pointed to the photo and said, “that looks just like him.”

On October 11, 2006, Hill prepared a photo array that was shown to complainant, who had since come out of a coma. The photo array utilized the up-to-date photo of defendant. Complainant identified defendant as one of the intruders. Approximately two weeks later, police took defendant into custody. The child witness who had previously identified defendant from the photo array viewed a six-person lineup and identified defendant as one of the armed intruders. Defendant was transported to the public safety building for further questioning.

Prior to interviewing defendant, Hill read defendant his Miranda rights. Defendant stated that he understood the rights and exercised his right not to speak with Hill. At that point, Hill told defendant that he was being charged for the shootings that had occurred on September 14, 2006. According to Hill, defendant “acted surprised like he didn’t know what [Hill] was talking about,” so Hill apprised defendant of the charges and of the fact that he was being charged with a co-defendant. Investigator Brian Tucker, who was also in the interview room, asked defendant if he knew the codefendant, and defendant responded that he did not. Defendant again “acted surprised,” so Hill stated, “well, you must know what I’m talking about because this guy [the codefendant] . . . had shot himself at some point after this incident.” At that point, defendant stated that the codefendant had not shot himself because “nobody shoots themselves there like that” and acknowledged that he knew codefendant.

In an 11-count indictment, defendant and codefendant were charged with attempted murder in the second degree and various assault, robbery and burglary counts. The People served a CPL 710.30 notice upon defendant concerning defendant’s post-Miranda statements. As relevant here, defendant moved for a Huntley/Wade hearing seeking suppression of defendant’s statements and the witness identifications. The People withdrew their CPL 710.30 notice and stipulated that they would utilize defendant’s statements only for cross-examination purposes should defendant choose to testify. In response, defendant moved to convert his suppression motion to a preclusion motion, arguing that should defendant opt to testify, the People should be precluded from using the statements he made to police for impeachment purposes because they were obtained in violation of a constitutional right.

At a hearing on the issue, Hill and Tucker testified as to the substance of defendant’s post -Miranda statements. Defense counsel argued that it was the “plan or design” of the police to knowingly continue to question defendant after he had invoked his Miranda rights so as to preclude defendant from taking the stand. Defense counsel claimed that if it could be shown that the investigators continued interrogating defendant in bad faith, then the People could not use any evidence from that impropriety on cross-examination or rebuttal. County Court permitted defense counsel to question the investigators about the circumstances surrounding the making of the statements. During that testimony, Hill acknowledged that once defendant invoked his Fifth Amendment rights, he knew that defendant did not wish to speak. Hill also stated that he knew that once a defendant invokes such rights anything the defendant states may not be used on direct examination, but that statements obtained after the invocation of Miranda could be used on cross-examination or rebuttal. County Court, finding defendant’s statements to have been voluntarily made, denied defendant’s motion to preclude the People’s use of the statements on cross-examination or rebuttal.

The matter proceeded to trial. Defendant did not testify or call any witnesses. He was ultimately convicted of, among other things, attempted murder in the second degree, and sentenced to an aggregate term of 50 years. The Appellate Division modified by reversing that part of the judgment convicting defendant of attempted murder in the second degree, dismissing the ninth count of the amended indictment and ordering the sentences on the remaining counts to run concurrently as to each other (resulting in an aggregate sentence of 25 years), and otherwise affirmed (120 AD3d 1531, 1532 [4th Dept 2014]). As relevant here, the Appellate Division held that County Court “did not err in determining that defendant’s statements to the police during a brief exchange, made by defendant after he refused to waive his Miranda rights, were voluntary and thus were admissible for impeachment purposes” (id. at 1533 [citations omitted]).

A Judge of this Court granted defendant leave to appeal (25 NY3d 993 [2015]).

h—f I—I

It is undisputed that the statements made by defendant to police were made after he had invoked his Miranda rights, and, thus, the People were prohibited from using the statements in their case-in-chief (see People v Wise, 46 NY2d 321, 328-329 [1978]; Harris, 25 NY2d at 177). Defendant argues that this rule does not go far enough, and advocates for a rule that precludes the People from utilizing post-invocation statements on cross-examination or rebuttal for impeachment purposes should a defendant opt to testify.

This Court has long held that if a statement made by the defendant to the police is voluntary, it may be used for impeachment purposes; but if a statement is involuntary, it will not be admissible, even if it may be deemed reliable (see People v Maerling, 64 NY2d 134, 140 [1984]; People v Walker, 110 AD2d 730, 732 [2d Dept 1985], affd for reasons stated 67 NY2d 776 [1986] [where statements are involuntarily obtained through coercion, such statements are inadmissible for use on cross-examination or rebuttal]).

The rule proposed by defendant would render inadmissible for impeachment purposes any statement elicited by law enforcement after the defendant invokes the right to remain silent. The adoption of such a rule, however, would require us to overrule our own decision in Harris and its progeny, and would effectively sanction perjury on the part of a testifying defendant by permitting the defendant to offer testimony that is inconsistent or at odds with the defendant’s prior statements (see Harris, 401 US at 226; see also Kulis, 18 NY2d at 323).

Here, County Court determined that the statements were voluntary and the Appellate Division affirmed that determination. Hill acknowledged that he was aware of the Harris decision and understood that defendant’s post -Miranda statements could not be used by the People in their case-in-chief but could be utilized by the People for impeachment purposes. However, there is nothing in the record to support defendant’s contention, in reliance on People v Nelson (189 Misc 2d 362, 365 [Monroe County Ct 2001]), that Hill consciously circumvented defendant’s invocation of his Fifth Amendment rights or otherwise rendered defendant’s statements involuntary as a matter of law. Thus, it cannot be said that County Court abused its discretion in denying defendant’s motion to preclude the People from utilizing the statements on cross-examination or rebuttal. Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed.

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

Order, insofar as appealed from, affirmed.

       Defendant also appealed County Court’s determination that the manner in which the photo arrays were shown to complainant and the child witness, and the lineup procedure employed by the police, were not unduly suggestive. The Appellate Division held that County Court did not err in refusing to suppress the identification evidence (120 AD3d at 1532-1533). We have considered defendant’s challenge to that determination and conclude that it is without merit.


author: Stein, J.

text:
    [64 NE3d 280, 41 NYS3d 460]
    Adam Villar, Respondent, v Timothy B. Howard, Erie County-Sheriff, Appellant.
    Argued September 13, 2016;
    decided October 25, 2016

      POINTS OF COUNSEL

      Michael A. Siragusa, County Attorney, Buffalo (Kenneth R. Kirby of counsel), for appellant.

      Connors LLP, Buffalo {John T. Loss and Paul A. Woodard of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

General Municipal Law § 50-e (1) (b) provides that service of a notice of claim upon a public corporation is not a condition precedent to the commencement of an action against “an officer, appointee or employee of [the] public corporation” unless “the corporation has a statutory obligation to indemnify such person” under the General Municipal Law “or any other provision of law.” On this appeal, we are asked to determine whether Erie County had a statutory obligation within the meaning of section 50-e (1) (b) to indemnify defendant, the Erie County Sheriff, such that a notice of claim was required. Because we agree with the Appellate Division that no such statutory obligation exists and we conclude that the complaint was otherwise sufficient to withstand a motion to dismiss, we affirm.

Plaintiff alleges that, while being held for five days at the Erie County Correctional Facility in January 2010, he was sexually assaulted twice in a shower stall by an inmate. He commenced several actions following these incidents; the complaint in this action alleged that defendant Sheriff breached a duty to protect plaintiff from a reasonably foreseeable hazard of sexual assault, disregarded known risks of harm to inmates vulnerable to sexual abuse by other inmates at the facility, and had actual.knowledge of the dangerous propensities of the inmate who assaulted plaintiff. Defendant moved to dismiss the complaint pursuant to CPLR 3211, arguing that plaintiff failed to serve a notice of claim naming defendant and that the complaint did not state a cognizable cause of action.

Supreme Court granted defendant’s motion, dismissing the complaint because “[n]o notice of claim was served nor was permission sought of the court to serve a late notice, prior to the expiration of the statute of limitations applicable to a sheriff.” The court reasoned that plaintiff was required to serve a notice of claim pursuant to General Municipal Law § 50-e because the County is statutorily obligated to indemnify defendant under “the County legislature’s resolution of May 16, 1985.” As relevant here, the court also concluded that the allegedly negligent acts were “inherently discretionary” and that, in any event, plaintiff failed to establish that defendant owed him a duty of care in the first instance.

Upon plaintiff’s appeal, the Appellate Division modified by reinstating the complaint except to the extent it alleged that defendant is vicariously liable for the negligence of his employees (126 AD3d 1297 [4th Dept 2015]). The Court held that plaintiff was not required to serve a notice of claim prior to commencing this action because Erie County has no statutory obligation to indemnify defendant (see id. at 1298-1299). The Court further concluded that, pursuant to Correction Law § 500-c, defendant has a duty to safely “keep” the prisoners in the county jail, and rejected defendant’s argument that the complaint must be dismissed because his alleged negligence arises from discretionary acts for which he is entitled to governmental immunity, explaining that defendant’s argument presents a factual question that cannot be determined at the pleading stage (see id. at 1299).

Addressing first whether a notice of claim was required, we conclude that the Appellate Division properly rejected defendant’s argument that a May 16, 1985 Erie County resolution entitled “Liability Insurance for the Sheriffs Department” statutorily obligates the county to indemnify defendant Sheriff for purposes of General Municipal Law § 50-e (1) (b). In the “Whereas” clauses of the resolution, the County noted that the law enforcement liability insurance that it traditionally purchased for the Sheriffs Department had become prohibitively expensive, and that it was obligated to defend and indemnify the Sheriffs Department employees pursuant to a collective bargaining agreement and Public Officers Law § 18, “but the County cannot, under the New York State Constitution, be made responsible for the acts of the Sheriff.” Thus, the County resolved to act as insurer for the Sheriff, in exchange for an annual payment of $1, provided that the County’s obligation did not extend to punitive or exemplary damages and that the County would not be made responsible for the acts of the Sheriff or become a party in actions arising out of the acts of the Sheriff.

The resolution, when read as a whole, makes clear that the County agreed to provide “Liability Insurance” for the Sheriff in exchange for consideration because “policies of law enforcement liability insurance paid for by the County” had become prohibitively expensive. In resolving to act as an insurer, the County recognized—as was commonly understood at the time— that it could not statutorily obligate itself to defend and indemnify the Sheriff, as it had agreed to do for the Sheriffs employees, under the New York State Constitution (see Rep of Law Rev Commn, 1981 McKinney’s Session Laws of NY at 2321 and n 47). Absent the existence of any statutory obligation on the County to indemnify the Sheriff—as opposed to an agreement to act as his insurer—the Appellate Division correctly ruled that service of a notice of claim was not required under General Municipal Law § 50-e.

Defendant Sheriff further argues that, to survive a motion to dismiss, the complaint would have to allege that he was present and failed to prevent the attacks on plaintiff, or had specific prior knowledge that plaintiff was particularly vulnerable to assault. This Court rejected similar arguments with respect to state prison inmates in Sanchez v State of New York on the ground that the defendant sought to “improperly modiffy] the test for foreseeability from what is reasonably to be perceived, to what is actually foreseen, and thus unduly circumscribe [ ] the standard of care normally due any party: reasonable care under the circumstances” (99 NY2d 247, 254 [2002]). While the State is by no means an insurer of inmate safety or required to provide unremitting surveillance in all circumstances (see id. at 253, 256), we explained in Sanchez that, “[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates” (id. at 252). Inasmuch as “the Sheriff is [similarly] prescribed, by law, to safely keep inmates of the County Jail” (Adams v County of Rensselaer, 66 NY2d 725, 727 [1985]; see Correction Law § 500-c; Kemp v Waldron, 115 AD2d 869, 870 [3d Dept 1985]), the rule set forth in Sanchez applies equally here. “[A]ccept[ing] the facts as alleged in the complaint as true, according] plaintiff[ ] the benefit of every possible favorable inference . . . [and] considering] [the] affidavit [ ] submitted by . . . plaintiff to remedy any defects in the complaint” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we conclude that the complaint adequately set forth a negligence claim to survive a CPLR 3211 (a) (7) motion to dismiss.

Finally, we agree with the Appellate Division that resolution of defendant’s argument that he is entitled to governmental immunity—an affirmative defense on which he bears the burden of proof (see Valdez v City of New York, 18 NY3d 69, 79-80 [2011])—is not appropriate at this stage of the proceedings. Defendant’s remaining arguments have been rendered academic by our decision. Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs, and the certified question answered in the affirmative.

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

Order, insofar as appealed from, affirmed, with costs, and certified question answered in the affirmative.

      . Although the constitutional bar has since been removed (see Bardi v Warren County Sheriff’s Dept., 194 AD2d 21, 23 [3d Dept 1993]), Erie County has not adopted an obligation to indemnify the Sheriff or otherwise altered its 1985 resolution.

      . Defendant’s argument that plaintiff was required to allege a special duty lacks merit (see Sanchez, 99 NY2d 247, 253 n 3 [2002]; Kemp, 115 AD2d 869, 870 [3d Dept 1985]).


author: Pigott, J. Stein, J.

text:
    [65 NE3d 35, 42 NYS3d 64]
    Three Amigos SJL Rest., Inc., Doing Business as The Cheetah Club, et al., Plaintiffs, and Dominica O’Neill et al., Appellants, v CBS News Inc. et al., Respondents.
    Argued September 6, 2016;
    decided October 25, 2016

      POINTS OF COUNSEL

      Rex Whitehorn & Associates, P.C., Great Neck (Rex White-horn of counsel), and Law Offices ofNichelle A. Johnson, PLLC, New Rochelle (Nichelle A. Johnson and Vivian Lee of counsel), for appellants.

      Levine Sullivan Koch & Schulz, LLP, New York City (Jay Ward Brown of counsel), Levine Sullivan Koch & Schulz, LLP, Washington, D.C. (Chad R. Bowman, of the District of Columbia and Maryland bars, admitted pro hac vice, of counsel), and CBS Law Department, New York City {Anthony M. Bongiorno and Joseph F. Richburg of counsel), for respondents.
   OPINION OF THE COURT

Pigott, J.

The issue in this defamation case is whether certain statements made by defendants during a news broadcast were “of and concerning” the plaintiffs. The underlying events occurred on November 30, 2011, when federal authorities raided the Cheetah Club (Cheetah’s) in Manhattan. Authorities believed Cheetah’s was one of several strip clubs involved in a trafficking ring in which members of the Bonanno and Gambino crime families illegally brought Russian and eastern European women into the United States. The investigation was dubbed “Operation Dancing Brides” because the women were placed in sham marriages for citizenship purposes and forced to dance in New York City strip clubs.

CBS 2 News reported on the raid during a noon news broadcast. While standing in front of the Cheetah Club, reporter Kathryn Brown stated,

“[S]ources tell CBS-2 News this bust is being dubbed ‘Operation Dancing Brides’ and this strip club here, Cheetahs in Midtown, they say is at the center of the operation. Cheetahs advertises exotic women and the federáis—federal authorities say it is run by the mafia. They have been here—feds have been here all morning. They conducted an early morning raid and they’ve been here for hours inside collecting evidence. They are still inside right now.
“Meantime, earlier this morning, agents with the immigrations and customs enforcement arrested 25 men described as ringleaders of this entire operation. Many of them they say are members of the Gambino and Bonanno crime families. They say the men were involved in an elaborate operation to recruit women from Russia and eastern Europe into the U.S. The ringleaders would then pay young men living here in the U.S. and upstate New York to marry these women on paper, then force the women to work as dancers in strip clubs across New York City, including Cheetahs. The men are charged with a variety of crimes including visa fraud, marriage fraud, and racketeering.
“This is still a developing story and we will have much more on this tonight on CBS-2 News at 5:00.”

The station followed up with the story during its evening broadcast:

“Federal authorities . . . say the club, Cheetahs, is one of several at the center of an underground immigration ring that stretches from Times Square to the heart of Russia. Investigators say Russian and Italian mobsters were working together in the elaborate scheme to bring Russian and eastern European women to the U.S., then funnel them to strip clubs to work as exotic dancers.”

A summary of the same story was subsequently posted to the local CBS New York website, with a statement that Cheetah’s was “one of several [strip clubs] at the center of an underground immigration ring . . . operated by colluding, organized crime entities that profited wildly through a combination of extortion and fraud.”

Three Amigos SJL Rest., Inc., doing business as the Cheetah Club, commenced a defamation action against CBS Broadcasting Inc. (incorrectly sued as CBS News, Inc.) and several of its reporters for broadcasting and publishing allegedly false stories about the club’s connection to the Mafia. Times Square Restaurant Group and Times Square Restaurant No. 1, Inc.— independent entities that provide management and talent services to the club—were also plaintiffs in the action, along with Dominica O’Neill, Shawn Callahan and Philip Stein, who were employed by the two Times Square Restaurant entities and involved in the Cheetah Club’s daily operations. Plaintiffs alleged, as relevant here, that defendants’ false statements about the club’s involvement in Operation Dancing Brides, particularly the statement that Cheetah’s was “run by the mafia,” subjected them to scorn and ridicule and adversely affected their ability to earn income.

Defendants moved to dismiss the claims by the two Times Square Restaurant entities and plaintiffs O’Neill, Callahan and Stein pursuant to CPLR 3211 (a) (1) and (7), arguing that the news reports were not “of and concerning” them. Supreme Court granted defendants’ motion with respect to those plaintiffs (2013 NY Slip Op 31081[U] [Sup Ct, NY County 2013]), and the Appellate Division affirmed, with two Justices dissenting in part (132 AD3d 82 [1st Dept 2015]). The individual plaintiffs, but not the Times Square Restaurant entities, appealed as of right pursuant to CPLR 5601 (a), and we now affirm.

In order to establish a prima facie case of defamation, plaintiffs must show that the matter published is “of and concerning” them (Julian v American Bus. Consultants, 2 NY2d 1, 17 [1956]). Although it is not necessary for the plaintiffs to be named in the publication, they must plead and prove that the statement referred to them and that a person hearing or reading the statement reasonably could have interpreted it as such (see id.; Prosser & Keeton, Torts § 111 at 783 [5th ed 1984]). This burden is not a light one, and the question of whether an allegedly defamatory statement could reasonably be interpreted to be “of and concerning” a particular plaintiff is a question of law for the courts to decide (see Springer v Viking Press, 60 NY2d 916, 917 [1983]; Carlucci v Poughkeepsie Newspapers, 57 NY2d 883, 885 [1982]).

Accepting as true each and every allegation in the complaint, the challenged statements were not of and concerning plaintiffs O’Neill, Callahan and Stein. The news broadcast stated that Cheetah’s was purportedly used by the Mafia to carry out a larger trafficking scheme. It did not mention any employees of the club or of the management and talent agencies that facilitate its daily operations, let alone the individual plaintiffs in these appeals, who were not identified or pictured in the report. In context, the statement that Cheetah’s was “run by the mafia” could not reasonably have been understood to mean that certain unnamed individuals who do not work for Cheetah’s but oversee its food, beverage and talent services are members of organized crime (see Hays v American Defense Socy., 252 NY 266, 269-270 [1929]; see also Carlucci, 57 NY2d at 885; Kirch v Liberty Media Corp., 449 F3d 388, 398 [2d Cir 2006] [holding, under New York law, that a defamatory statement directed at a corporation is not “of and concerning” unnamed employees of that corporation]). Nor did the challenged statements describe a particular, specifically-defined group of individuals who “run” the Cheetah Club, such that the small group libel doctrine would apply (see Gross v Cantor, 270 NY 93, 94, 96 [1936] [allegedly defamatory statements directed at “all save one of the radio editors in New York City” was of and concerning plaintiff New York City radio editor]). Contrary to the dissent’s assertion, defendants’ broadcast referred only to the club and failed to include sufficient particulars of identification in order to be actionable by an individual (cf. Brady v Ottaway Newspapers, 84 AD2d 226, 233 [2d Dept 1981]).

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

Stein, J.

(dissenting). In my view, the courts below erred in granting defendants’ motion to dismiss the complaint as asserted by plaintiffs Dominica O’Neill, Shawn Callahan, and Philip Stein on the ground that, as a matter of law, the challenged statement was not “of and concerning” those individual plaintiffs. I, therefore, respectfully dissent.

To assert a viable defamation claim, the allegedly defamatory statement must be susceptible to a reasonable interpretation by those “acquainted with the parties and the subject” as being “of and concerning” the plaintiff (Carlucci v Poughkeepsie Newspapers, 57 NY2d 883, 885 [1982]; see Springer v Viking Press, 60 NY2d 916, 917 [1983]; Julian v American Bus. Consultants, 2 NY2d 1, 7 [1956]). To be sure, “[t]he ‘of and concerning’ requirement stands as a significant limitation on the universe of those who may seek a legal remedy for communications they think to be false and defamatory and to have injured them” (Kirch v Liberty Media Corp., 449 F3d 388, 399-400 [2d Cir 2006]). However, the allegedly defamatory remark need not refer to a plaintiff by name and, in such cases, a plaintiff may demonstrate through “extrinsic facts” that the statement referred to him or her (Gross v Cantor, 270 NY 93, 95 [1936]; see Chicherchia v Cleary, 207 AD2d 855, 856 [2d Dept 1994]; Bee Publs. v Cheektowaga Times, 107 AD2d 382, 385 [4th Dept 1985]). Significantly, it is not necessary that the general public understand the statement to concern the plaintiff, so long as those familiar with the plaintiff would reasonably understand the statement as referring to him or her (see Carlucci, 57 NY2d at 885; Gilman v Spitzer, 538 Fed Appx 45, 47 [2d Cir 2013]).

While application of the allegedly defamatory words to the plaintiff need only be stated generally (see CPLR 3016 [a]), courts may dismiss a complaint where, as a threshold matter of law, the statement cannot be reasonably understood as being “of and concerning” the plaintiff (see e.g. Springer, 60 NY2d at 917; Carlucci, 57 NY2d at 885). However, the question of whether a statement is “of and concerning” the plaintiff is generally one for the jury (see Harwood Pharmacal Co. v National Broadcasting Co., 9 NY2d 460, 462 [1961]; Gross, 270 NY at 96; Bee Publs., 107 AD2d at 385; Brady v Ottaway Newspapers, 84 AD2d 226, 231 [2d Dept 1981]; Grinaldo v Meusburger, 34 AD2d 586, 587 [3d Dept 1970], appeal dismissed 27 NY2d 598 [1970]; Geisler v Petrocelli, 616 F2d 636, 640 [2d Cir 1980]; 2A NY PJI2d 3:25 at 327 [2016]). Moreover, at the pleading stage, courts must accept the allegations of the complaint as true and, reading the complaint in conjunction with supplementing affidavits, a motion to dismiss must be denied “[i]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation” (Silsdorf v Levine, 59 NY2d 8, 12 [1983], cert denied 464 US 831 [1983]; see Davis v Boeheim, 24 NY3d 262, 268 [2014]; Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]).

As reflected in the majority opinion of this Court, resolution of defendants’ motion to dismiss in the instant case depends upon whether defendants’ broadcast—and, in particular, defendants’ statement that the Cheetah Club was “run by the mafia”—can reasonably be understood as a statement “of and concerning” the three individual plaintiffs. According to the complaint and O’Neill’s affidavit, plaintiffs—although technically employees of other corporations—provided the Cheetah Club with management, promotional, talent, and booking services, and also handled the day-to-day operations of the club. O’Neill averred that plaintiffs comprised a “small and exclusive group of individuals who ‘run’ and manage” the club, were present at the club on a daily basis managing and operating its affairs, and were known by customers, vendors, entertainers, and city officials as the persons who “ran” the club. In other words, plaintiffs asserted that they were “the face of‘management’ of the Cheetah Club.” O’Neill also averred that, after defendants’ broadcast aired, she was contacted by numerous individuals who believed—as a result of the broadcast—that she was a member of the Mafia and involved in human trafficking.

In my opinion, assuming the truth of these allegations, defendants’ statement that Cheetah’s was “run by the mafia” could reasonably be interpreted by patrons, business associates, and other persons familiar with plaintiffs and their role at the Cheetah Club, as being “of and concerning” plaintiffs. Contrary to the view of the majority of this Court, I agree with the dissenting Justices of the Appellate Division that, viewing the broadcast in its entirety, an average listener—particularly someone familiar with plaintiffs and the establishment—could very reasonably understand the challenged statement to mean that plaintiffs—the individuals who managed the day-to-day operations of the establishment—were involved with a criminal organization. One need not “strain” to discern this interpretation (Cohn v National Broadcasting Co., 50 NY2d 885, 887 [1980], cert denied 449 US 1022 [1980]), which is at least as plausible as the one adopted by the majority here—namely, that defendants’ remark meant only that the club was “used by the Mafia to carry out a larger trafficking scheme” (majority op at 87). Given that the statement is susceptible to more than one reasonable interpretation, at least one of which implicates plaintiffs as members of the Mafia, its meaning should not be decided as a matter of law. Rather, it is the province of the jury to determine whether the statement referred to plaintiffs (see Harwood, 9 NY2d at 462).

Defendants correctly point out that a statement is typically not found to be “of and concerning” an individual where the plaintiff is merely an employee of an establishment about which allegedly defamatory statements have been made (see Carlucci, 57 NY2d at 885; Afftrex, Ltd. v General Elec. Co., 161 AD2d 855, 856 [3d Dept 1990]; Cohn v National Broadcasting Co., 67 AD2d 140, 146 [1st Dept 1979], affd 50 NY2d 885 [1980]). However, the statement at issue here is not directed solely at the Cheetah Club as a corporate entity. The statement that Cheetah’s was “run by the mafia” could just as reasonably be interpreted as meaning that the individuals who ran the club were associated with the Mafia (see Harwood, 9 NY2d at 462). Furthermore, to the extent the majority relies on the fact that plaintiffs did not “own” Cheetah’s and were technically employed by other corporations, such facts are ir-revelant because knowledge of the corporate structure cannot be imputed, without any basis in the record, to the average patron or associate who observed or knew plaintiffs to seemingly be in control of, or running, the club.

Defendants’ argument that plaintiffs’ defamation cause of action fails because the statement does not refer to a sufficiently small or identifiable group is also unpersuasive. “[A] plaintiff’s claim is insufficient if the allegedly defamatory statement referenced the plaintiff solely as a member of a group, unless the plaintiff can show that the circumstances of the publication reasonably give rise to the conclusion that there is a particular reference to the plaintiff” (Diaz v NBC Universal, Inc., 337 Fed Appx 94, 96 [2d Cir 2009]; see Gross, 270 NY at 96; Abramson v Pataki, 278 F3d 93, 102 [2d Cir 2002]; Restatement [Second] of Torts § 564A [1977]). “The underlying premise of this principle is that the larger the collectivity named in the libel, the less likely it is that a reader would understand it to refer to a particular individual” (Brady, 84 AD2d at 228). However, where a group is sufficiently small, a defamation claim may be viable because “reference to the individual plaintiff reasonably follows from the statement and the question of reference is left for the jury” (Brady, 84 AD2d at 231; see Gross, 270 NY at 96).

Here, the “group” at issue is comprised of those individuals who “run” the Cheetah Club. According to plaintiffs’ allegations, there are only three individuals who managed or ran Cheetah’s and who would be identified by those familiar with the club as the individuals who “run” the club. This is undoubtedly a sufficiently small group for a defamation claim to remain viable (see Gross, 270 NY at 95 [all but one of 12 radio editors in New York]; Brady, 84 AD2d at 238 [53 police officers sufficiently small size]; compare Diaz, 337 Fed Appx at 96 [group including several hundred individuals is too large to support a defamation claim]). Therefore, it “does not. . . appear that the publication was so scattered a generality or described so large a class . . . that no one could have been personally injured by it” (Gross, 270 NY at 96).

Accordingly, I would reverse the Appellate Division order insofar as it is appealed.

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

Order, insofar as appealed from, affirmed, with costs.

       Defendants also moved to dismiss, on other grounds, certain claims made by Three Amigos SJL Rest., Inc. (doing business as the Cheetah Club), which is not a party to this appeal. Defendants conceded, however, that the challenged statements were “of and concerning” the Cheetah Club.


author: Pigott, J. Rivera, J.

text:
    [65 NE3d 46, 42 NYS3d 75]
    In the Matter of Jamal S., a Person Alleged to be a Juvenile Delinquent, Respondent. Presentment Agency, Appellant.
    Argued September 15, 2016;
    decided October 27, 2016

      POINTS OF COUNSEL

      Zachary W. Carter, Corporation Counsel, New York City (Tahirih M. Sadrieh, Richard Rearing, Cecelia Chang and
      Deborah A. Brenner of counsel), for appellant.

      Seymour W. James, Jr., The Legal Aid Society, New York City {Raymond E. Rogers, Tamara A. Steckler and Eileen Malunowicz of counsel), for respondent.
   OPINION OF THE COURT

Pigott, J.

On August 13, 2012 at approximately 10:30 p.m., Officer Leo and his partner were on patrol when they observed respondent Jamal S. and his companion riding their bicycles against the flow of traffic on a one-way street. The officers stopped the two individuals. Respondent told the officers that he was 16 years old. Initially, Officer Leo intended to issue respondent a summons for disorderly conduct (Penal Law § 240.20 [7]), but because he was unable to produce identification, the officers patted him down, placed him in handcuffs and transported him to the precinct. When he arrived at the precinct at approximately 11:00 p.m., he was searched a second time.

At approximately 11:20 p.m., respondent told the officers that he was actually 15 years old. The officers then intended to call his parents, but respondent was unable to recall their telephone numbers, and, although his cell phone contained the numbers, it was not charged. While the officers were charging respondent’s phone for him, Officer Leo asked Officer Dooley to place respondent in the juvenile room. Officer Dooley patted respondent down and directed him to remove his belt, shoelaces and shoes as standard police procedure for juveniles. A revolver was recovered from one of the shoes.

The presentment agency filed a juvenile delinquency petition charging respondent with various weapon possession counts. Family Court denied respondent’s motion to suppress, holding that the police had probable cause to arrest him for disorderly conduct based on the street encounter. The court further held that the seizure of the gun was not the result of an illegal search, because the officers were justified in having respondent remove his belt, shoelaces and shoes as part of police protocol to ensure a detainee’s safety.

Respondent thereafter pleaded guilty to committing an act that, had it been committed by an adult, constituted criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). He was adjudicated a juvenile delinquent and placed on 18 months’ probation.

A divided Appellate Division reversed, with the majority holding that the search that uncovered the weapon from respondent’s shoe was unreasonable as a matter of law (123 AD3d 429, 429 [1st Dept 2014]). As relevant here, the majority rejected the presentment agency’s argument that matters of safety permitted the officers to require respondent to remove his shoes, stating that safety provided “no justification in this case where [respondent] was continuously in police custody and had been searched twice before being directed to remove his shoes” (id. at 431). It acknowledged that there are “appropriate cases” when “officers are authorized to employ reasonable measures to guard against detainees’ self-infliction of harm,” which “may include the removal of belts and shoelaces,” but the removal of the shoes could not be considered a protective measure since officers had previously searched him and had no basis to believe that respondent possessed contraband or otherwise was dangerous (id.).

The dissenters countered “that the limited search undertaken when [respondent] was about to be placed in the precinct’s juvenile room, unguarded, was reasonable in scope and manner of execution” (id. at 432). They concluded that it was of no moment that, at the time of the search, the officers “had no reason to expect that [respondent] had ‘anything on him,’ or otherwise posed a danger,” because respondent “was subject to the actual supervision and control of police officers, who were responsible for his safety until such time as he could be released to his mother’s custody” (id. at 435).

The presentment agency appealed to this Court as of right pursuant to CPLR 5601 (a), and we now reverse.

At issue here is whether the police had the authority to arrest respondent and whether the subsequent search of his shoes was reasonable. Although “questions of the reasonableness of [police] conduct can rarely be resolved as a matter of law even when the facts are not in dispute” (People v Harrison, 57 NY2d 470, 478 [1982]), here, the majority and dissent did not disagree on facts or inferences material to the narrow issues before us. Rather, the majority and dissent disagreed as to whether the search of respondent’s shoes was justified, as a matter of law (compare 123 AD3d at 431 with id. at 434-435 [Andrias, J., dissenting]). Therefore, the dual dissent was on a question of law and we have jurisdiction over this appeal (see Arthur Karger, Powers of the New York Court of Appeals §§ 6:4, 6:5 at 200-207 [3d ed rev 2005]).

On the merits, we agree with Family Court that the officers’ initial arrest of respondent was lawful in light of what they believed at the time (cf. Matter of Victor M., 9 NY3d 84, 87 [2007] [holding that a warrantless arrest of a juvenile for committing violations was improper where the juvenile was 15 years old at the time of the arrest and there was “no evidence in the record that the officer either believed or had reason to believe that he was older”]). Respondent initially told police on the street that he was 16 years old. Because he lacked identification, the police transported him to the precinct, where, nearly an hour later, he told them that he was only 15 years old. Thereafter, the officers treated respondent as a juvenile, placing him in a juvenile room and making him remove his belt, shoelaces and shoes as a protective measure until his parents were notified and he could be picked up from the precinct. Based on respondent’s representation that he was 16 years old and the officers’ observations of him in the street, the officers had probable cause to arrest respondent for disorderly conduct.

We also conclude that the limited search of respondent’s shoes was reasonable. The majority found no fault with the request that respondent remove his belt and shoelaces as a safety precaution; rather it was the request to remove his shoes that the majority held to be “far more intrusive than a frisk or a patdown” (123 AD3d at 431 [citation omitted]). However, the officers were not first required to suspect that respondent either possessed contraband or posed a danger to himself or officers before being directed to remove his shoes. In that regard, the limited search of respondent’s shoes while he was temporarily detained and awaiting the notification of his parents was a reasonable protective measure employed by police to ensure both the safety of respondent and the officers, and the intrusion was minimal (see generally Matter of Shamel C., 254 AD2d 87, 87 [1st Dept 1998]).

Accordingly, the order of the Appellate Division should be reversed, without costs, and the dispositional order of Family Court, Bronx County, reinstated.

Rivera, J.

(dissenting). The appeal should be dismissed for lack of jurisdiction under CPLR 5601 (a) because the Appellate Division’s two-Justice dissent was not on a question of law. Accordingly, I would not reach the merits.

A party may take an appeal as of right from an order of the Appellate Division pursuant to CPLR 5601 (a) “where there is a dissent by at least two justices on a question of law in favor of the party taking such appeal” (CPLR 5601 [a]; Matter of Robert S., 76 NY2d 770 [1990]; see Arthur Karger, Powers of the New York Court of Appeals §§ 6:4, 6:5 at 200-207 [3d ed rev 2005]). No appeal lies where the dual dissent is on a question of fact or a mixed question of law and fact (see e.g. Matter of Daniel H., 15 NY3d 883, 884 [2010]). As the Court has explained, a mixed question is presented where “facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn from the established, facts” (People v McRay, 51 NY2d 594, 601 [1980]). The Court has consistently applied this limitation on jurisdiction to delinquency cases (see e.g. Matter of Daniel H., 15 NY3d 883, 884 [2010]; Matter of Jaquan M., 19 NY3d 1041 [2012]; Matter of Darryl C., 19 NY3d 1040 [2012]; Matter of Melissa O., 87 NY2d 916 [1996]).

In determining whether jurisdiction is properly based on CPLR 5601, this Court makes an independent assessment and is not bound by any characterizations of the grounds for the dissent contained in the Appellate Division opinion (Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990, 991 [1988]). Thus, the fact that the Appellate Division majority described its decision as being made “as a matter of law” is irrevelant to whether the dissent was actually predicated on a mixed question of law and fact (see People v Holland, 18 NY3d 840, 841 [2011]). Instead, we must look to the analytical disagreement in the dissent to determine whether a question of law is presented (Feldsberg v Nitschke, 49 NY2d 636, 640 n 1 [1980]). “Where it is equivocal whether a dissent rests upon disagreement in fact or law, the dissent is not on a question of law within the meaning of CPLR 5601 (subd. [a])” (Gillies Agency v Filor, 32 NY2d 759, 760 [1973]).

This is not a case where a question of law as to the “minimum showing necessary” to establish a predicate for a search or seizure is presented (People v McRay, 51 NY2d 594, 601 [1980]). Instead, the parties focus on the reasonableness of the police conduct. It is by now well established that the reasonableness of police conduct presents a mixed question of law and fact generally beyond the review of this Court (see e.g. People v Williams, 17 NY3d 834, 835 [2011] [“The reasonableness of a seizure, the existence of probable cause or reasonable suspicion, the classification of a detention as an arrest and the attenuation of evidence from police misconduct are all mixed questions of law and fact that are beyond this Court’s review unless there is no record support for the determinations of the court below”]). A determination of what is reasonable in any given situation requires a contextualized assessment of specific facts. While questions concerning the reasonableness of police conduct frequently arise in criminal cases, this Court applies the same standard in delinquency cases (see Matter of Daniel H., 15 NY3d at 884).

In this case the dissent and majority’s conclusions do not depend on the application of different legal standards. Indeed, there is no dispute of law between the dissent and the majority. Rather, the disagreement that animates the dual dissent is whether the search of this respondent was reasonable “considering the totality of the circumstances,” as the dissent termed it (Matter of Jamal S., 123 AD3d 429, 432 [1st Dept 2014]). The dissent’s conclusions as to the reasonableness of the search turn on the meaning attached to the facts and the inferences to be drawn concerning the propriety of respondent’s arrest, transport to the precinct, continued detention, and finally the search itself. That is, the dissenters “drew . . . different inference [s] from the established facts [than the majority did], thus deciding [only] mixed question[s] of law and fact” (People v Brown, 25 NY3d 973, 976 [2015]). Unlike the Appellate Division majority, the dissent inferred that it was reasonable for the police to doubt respondent was 15 years old, given the facts that at the time of his arrest he told the police he was 16 and then failed to present identification to support his later claim that he was only 15. Further, and contrary to the majority’s view that respondent’s encounter with the police “began with the detention of a juvenile who did nothing more than ride a bicycle in the wrong direction on a roadway” (Matter of Jamal S., 123 AD3d at 431-432), the dissenters found that respondent had committed disorderly conduct, which merited an arrest in light of respondent’s claim to be 16. Based upon the fact that respondent initially lied about his age, the dissent inferred that his presence in the precinct was “largely ... a result of his own misrepresentation” (Matter of Jamal S., 123 AD3d at 434). The dissent also had no quarrel with the intentional overnight delay in releasing respondent to his mother prior to the search, yet the majority found the record lacked an explanation for such delay when respondent’s mother told the arresting officer at 11:00 p.m. that she would pick him up, and the officer told her to instead “come in the morning.”

These are just some of the facts and inferences that informed the dissent’s view of the lawfulness of respondent’s detention in the juvenile room and the reasonableness of a third search of a previously searched teenager. As with a typical mixed question of law and fact, “reasonable minds may differ as to the inference to be drawn” from the record (People v Harrison, 57 NY2d 470, 477 [1982], citing McRay, 51 NY2d at 601), but for purposes of determining whether an appeal as of right lies under CPLR 5601 (a), there is no legal issue upon which the Appellate Division dissent and majority disagree.

The dissent’s conclusion that the police conduct was reasonable “considering the totality of the circumstances” presents a mixed question of law and fact, and is therefore beyond the scope of our power to review. I dissent.

Judges Ajbdus-Salaam, Fahey and Garcia concur; Judge Rivera dissents and votes to dismiss the appeal, in an opinion in which Chief Judge DiFiore and Judge Stein concur.

Order reversed, without costs, and dispositional order of Family Court, Bronx County, reinstated.

       The dissent interprets our holding by suggesting that it “opens the door to intrusive searches of every juvenile who enters a precinct, even in cases where a parent is willing and able to pick up a child who is being held without legal authority” (dissenting op at 100 n 2). Respondent was brought to the precinct based upon the misrepresentation that he was 16 years old, and, when the officers decided to treat him as a juvenile, they placed him in the juvenile room. Having respondent remove his shoes as part of police protocol while he was temporarily detained waiting for his parents to arrive was simply not “intrusive,” as the dissent claims.

      . Although the Appellate Division dissent and majority largely agree upon the facts, my colleagues are incorrect that the majority and dissent were in complete agreement about the facts material to whether the search was reasonable based on the “totality of the circumstances” (majority op at 97). The dissent’s time line, for example, has the officers placing respondent in the juvenile room and conducting the search while his phone is still charging, before speaking to respondent’s mother (Matter of Jamal S., 123 AD3d at 432-433). The majority concludes that the police spoke to respondent’s mother at 11:00 p.m., prior to the search, and inexplicably told her to pick him up the next day (id. at 429-430).

      . In any event, the majority’s conclusion that searching a juvenile’s shoes is reasonable as a matter of law opens the door to intrusive searches of every juvenile who enters a precinct, even in cases where a parent is willing and able to pick up a child who is being held without legal authority.


author: Abdus-Salaam, J.

text:
    [65 NE3d 41, 42 NYS3d 70]
    Stacy S. Killon, Respondent, v Robert A. Parrotta, Appellant.
    Argued September 15, 2016;
    decided October 27, 2016

      POINTS OF COUNSEL

      Gregory V. Canale, Queensbury, for appellant.

      Brennan & White, LLP, Queensbury (<Joseph R. Brennan of counsel), for respondent.
   OPINION OF THE COURT

Abdus-Salaam, J.

The issue presented is whether the Appellate Division applied the correct test in setting aside the jury verdict and concluding as a matter of law that defendant was the initial aggressor in the physical altercation between the parties, rendering a justification defense unavailable to defendant during retrial of the case. We hold that the Appellate Division did not apply the “utterly irrational” test required to make that determination as a matter of law. Applying that test to the trial evidence and in consideration of the jury instruction given, we hold that it was. not utterly irrational for the jury to find that defendant was not the initial aggressor and that he acted in self-defense. We therefore reverse and remit to Supreme Court for retrial.

L

This personal injury action resulted from a physical altercation between plaintiff, Stacy Killon, and defendant, Robert Parrotta. During trial the evidence revealed that plaintiff, a longtime friend of defendant’s then wife, made a drunken threatening phone call to defendant concerning defendant’s treatment of his wife. In response, defendant drove approximately 20 miles in the middle of the night to plaintiff’s residence in Olmstedville. Defendant’s stated intention was to end their dispute face-to-face, or to engage in a physical altercation. During defendant’s drive, he placed two phone calls to his then wife. Although defendant testified during trial that she did not answer either of his calls, his then wife testified that she had answered and defendant told her he was going to Olm-stedville to beat up plaintiff and to tell plaintiff that he was coming for that purpose.

When defendant arrived at plaintiff’s home, he shined his truck lights onto plaintiff’s property. Defendant and plaintiff, however, disagree on what occurred thereafter. Defendant claims that after plaintiff saw him, plaintiff exited his home with a maul hammer handle in hand. Defendant testified that he only wanted to talk to plaintiff, but after seeing plaintiff with the maul handle, he retrieved a bat out of his truck to defend himself. According to defendant, plaintiff then encouraged his dog to attack defendant. Defendant testified that plaintiff, still standing on his porch, swung the maul handle at him, grazing the back of defendant’s head. Defendant, claiming he could not retreat because he had bad knees, swung his bat at plaintiff. Although defendant does not recall the bat making contact with plaintiff, plaintiff suffered extensive damage to his jaw as a result. Defendant fled the scene following the incident. In plaintiff’s version of events, when defendant arrived at his home, he repeatedly told defendant to leave. He stated that as he stepped off his front porch he threw the maul handle to the ground, not at defendant. Defendant then swung his bat at plaintiff, causing plaintiff’s injuries. Additionally, a witness for plaintiff who was present during the incident testified that when defendant arrived, he came out of his truck with the bat.

Supreme Court provided the following jury instruction:

“defendant claims he was acting in self-defense and therefore is not liable for damages to the plaintiff. The defendant has the burden of establishing self-defense by a fair preponderance of the credible evidence, as I have already defined that term for you.
“In order to establish self-defense, the defendant must establish that he reasonably believed the plaintiff was attacking or about to attack him and that the force that the defendant used to prevent injury to himself was reasonable under the circumstances. ... In order for the defendant to be justified in using physical force, you must find the following factors:
“First. Whether the defendant was the initial aggressor. Initial aggressor means the person who first attacks or threatens to attack . . . [t]he actual striking of the first blow or inflicting the first wound is not in itself determinative of the question of who was the initial aggressor. ... A person who reasonably believes that another person is about to use physical force upon him need not wait until he’s struck or wounded. He may in such circumstances use physical force defensively, so long as it was reasonable for him to believe that the other person was using or about to use physical force upon him. He is then not considered to be the initial aggressor, even though he strikes the first blow or inflicts the first wound.
“Verbal quarrels, the use of abusive language, the calling of names or verbal threats do not justify the use of any physical force. You may not consider any of these in determining who was the initial aggressor.
“If you are satisfied that the defendant was the initial aggressor, then you must find he was not acting in self-defense. On the other hand, if the defendant was not the initial aggressor, you must continue ... to the remaining factors.”

The jury reached a unanimous verdict that defendant battered plaintiff by striking him with a bat, but also found that defendant acted in self-defense. Plaintiff moved for an order pursuant to CPLR 4404 (a) to set aside the verdict as a matter of law and direct judgment in his favor or, alternatively, set aside the verdict as contrary to the weight of the credible evidence and grant him a new trial. Supreme Court denied plaintiffs motion, holding that based on all the facts presented, the jury could have concluded that defendant’s actions were in self-defense, and judgment was entered in defendant’s favor.

On appeal, the Appellate Division reversed the Supreme Court order and judgment and ordered a new trial (98 AD3d 828 [3d Dept 2012] [hereinafter the 2012 Appellate Division order]). The Court concluded that “no fair interpretation of the evidence” supported “the verdict finding that defendant acted in self-defense” inasmuch as it was predicated upon “a conclusion that defendant was not the initial aggressor in the encounter” (id. at 829). The Court held that

“[d]espite plaintiff’s prior threatening phone calls and the evidence that plaintiff was the first of the two to swing his club, there is no dispute that defendant drove to plaintiff’s home and then advanced on plaintiff’s front porch with a bat in his hand while demanding a fist fight. Given these circumstances, the jury’s conclusion that defendant was not the first to threaten the immediate use of physical force is unreachable on any fair interpretation of the evidence” (id. at 830).

Two Justices dissented and voted to affirm, contending that “there [wa]s a fair interpretation of the evidence that support [ed] the conclusion that defendant was not the initial aggressor and, therefore, the jury’s verdict should not be disturbed” (id. at 830). The dissent noted that “the fact that defendant went to plaintiff’s home, approached the porch holding a bat and invited plaintiff to fist fight with him d[id] not require a finding that defendant was the initial aggressor” (id. at 831 [emphasis omitted]).

During the retrial ordered by the Appellate Division majority, Supreme Court indicated that it was constrained by the holding in the 2012 Appellate Division order that defendant was the initial aggressor, as a matter of law, and denied defendant’s request to charge the jury on self-defense. The jury found that defendant had committed a battery upon plaintiff and that plaintiff did not provoke the battery. The jury also awarded plaintiff $200,000 in damages for medical costs, $0 for past pain and suffering, and $25,000 for future pain and suffering. As relevant here, on appeal from the retrial, the Appellate Division “reject[ed] defendant’s claim that Supreme Court erred because it did not issue a justification charge to the jury” because that “defense is not available to the initial aggressor, and defendant concedes that, pursuant to this Court’s prior decision, he was the ‘initial aggressor’ ” (125 AD3d 1220, 1220-1221 [3d Dept 2015]).

Defendant’s appeal to this Court from the 2015 order brings up for review the prior non-final 2012 order, which concluded as a matter of law that defendant was the initial aggressor to whom the defense of justification is not available (see CPLR 5601 [a]; 98 AD3d at 830; 125 AD3d at 1221).

IL

The question before us is whether the Appellate Division’s legal conclusion in its 2012 order was reached under the proper test. When the Appellate Division reviews a jury determination, either it may examine the facts to determine whether the weight of the evidence comports with the verdict, or the Court may determine that the evidence presented was insufficient as a matter of law, rendering the verdict utterly irrational (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Defendant argues that the Appellate Division erred by setting aside the jury verdict in his favor and improperly determining as a matter of law that a justification defense was unavailable to him, without finding the verdict to be utterly irrational. We agree.

The Appellate Division may not disregard a jury verdict as against the weight of the evidence unless “the evidence so preponderate [d] in favor of the [moving party] that [it] could not have been reached on any fair interpretation of the evidence” (Lolik v Big v Supermarkets, 86 NY2d 744, 746 [1995]). Where the Appellate Division determines that a verdict is against the weight of the evidence, the remedy is to remit for a new trial. By contrast, where the Appellate Division intends to hold that a jury verdict is insufficient as a matter of law, it must first determine that the verdict is “utterly irrational” (Campbell v City of Elmira, 84 NY2d 505, 510 [1994]). To conclude that a verdict is utterly irrational, requiring vacatur of the verdict, the Court must determine that “there is simply no valid line of reasoning and permissible inferences which could possibly lead [a] rational [person] to the conclusion reached by the jury on the basis of the evidence presented at trial” (id. at 509 [emphasis omitted]). “When it can be said that ‘it would not be utterly irrational for a jury to reach the result it . . . determined . . . , the court may not conclude that the verdict is as a matter of law not supported by the evidence’ ” (id. at 510 [emphasis omitted], quoting Cohen, 45 NY2d at 499).

In its 2012 order, although the Appellate Division examined the facts and determined that “the jury’s conclusion that defendant was not the first to threaten the immediate use of physical force [wa]s unreachable on any fair interpretation of the evidence” (98 AD3d at 830)—ostensibly a weight of the evidence review—the effect of that order was to hold as a matter of law that defendant was the initial aggressor to whom the defense of justification was not available—a determination that could only be reached by concluding that the verdict was “utterly irrational.” Yet, the Appellate Division did not use the utterly irrational test. The Appellate Division’s error in not applying the proper test resulted in defendant being improperly precluded from raising a justification defense on the retrial. Defendant should have been afforded a new trial on all the issues in the case, including consideration of his justification defense by the jury. Despite this error, reversal is only required if we find that the jury verdict was not utterly irrational.

HH 1—I HH

Because determining whether a jury verdict was utterly irrational involves a pure question of law, this Court may look at the trial evidence and make that determination (see e.g. Cohen, 45 NY2d 493). We must consider the jury charge as to initial aggressor and self-defense that was given during the first trial because the instruction, submitted without objection, is the law of the case (see Passantino v Consolidated Edison Co. of N.Y., 54 NY2d 840, 842 [1981]). Based on that instruction, set forth above, we hold that the jury’s determination that defendant acted in self-defense was not utterly irrational.

The evidence presented during the first trial, as summarized in this opinion, revealed conflicting versions of events. Although the entire encounter occurred because defendant drove to the plaintiffs home, it was not utterly irrational for the jury, under the charge delivered to it, to determine that defendant was not the initial aggressor based on the conflicting versions. The jury could have believed that plaintiff brought out a weapon first, told his dog to attack defendant, and swung his weapon first. Because the jury verdict was not utterly irrational, we reverse and remit to Supreme Court for a new trial.

Accordingly, the order appealed from and the August 30, 2012 Appellate Division order insofar as brought up for review should be reversed, with costs, and the matter remitted to Supreme Court for a new trial in accordance with the opinion herein.

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

Order appealed from and the August 30, 2012 Appellate Division order insofar as brought up for review reversed, with costs, and matter remitted to Supreme Court, Warren County, for a new trial in accordance with the opinion herein.

      . The Appellate Division also held that “the jury’s failure to award damages for plaintiffs past pain and suffering deviated materially from reasonable compensation,” requiring a retrial unless the parties could stipulate to an increase in the awards for past and future pain and suffering (125 AD3d at 1223). Thereafter, the parties did so stipulate.

      . While we would normally remit to the Appellate Division to consider whether the jury’s verdict on self-defense was against the weight of the evidence, under these unusual circumstances, where the Appellate Division already performed that analysis and decided the case should be re-tried, remittal directly to Supreme Court for a new trial is most appropriate.