author: Read, J.

text:
    [931 NE2d 84, 905 NYS2d 115]
    The People of the State of New York, Respondent, v Scott G. Mitchell, Appellant.
    Argued May 6, 2010;
    decided June 15, 2010

      POINTS OF COUNSEL

      Brandon E. Boutelle, Deputy Public Defender, Elizabethtown, for appellant.
    I. Essex County Court, the court where appellant was originally tried and convicted, is the only court with jurisdiction to hear and decide appellant’s CPL article 440 motion. (People v Wurzler, 300 NY 344; People v McCullough, 300 NY 107; People v Gersewitz, 294 NY 163; Matter of Morhous v Supreme Ct. of State of N.Y., 293 NY 131; Matter of Pirro v Cirigliano, 226 AD2d 465, 88 NY2d 1033; People v Bachert, 69 NY2d 593; People v Vischi, 2 AD2d 636; People v Klein, 96 Misc 2d 564; People v Becvar, 50 Misc 2d 249; People v Resto, 6 Misc 3d 1040[A], 2005 NY Slip Op 50358[U].) II. The Legislature did not intend for the intrastate transfer of probation supervision, pursuant to CPL 410.80 (2), to divest the original trial court of jurisdiction to hear CPL article 440 motions. (Matter of Stitham v City of New York, Dept. of Probation, 127 Misc 2d 906.)

      Kristy L. Sprague, District Attorney, Elizabethtown (Brian Felton and Michael P. Langey of counsel), for respondent.
    The County Court correctly determined that it was without jurisdiction to grant the relief requested. (Matter of Syquia v Board of Educ. of Harpursville Cent. School Dist., 80 NY2d 531; People ex rel. Lefever v Supervisors of Ulster County, 34 NY 268; People ex rel. McEvoy v Duffey, 104 Misc 35, 185 App Div 917; Pultz v Economakis, 10 NY3d 542; State of New York v Patricia II., 6 NY3d 160; Delaware County Elec. Coop, v Power Auth. of State of N.Y., 96 AD2d 154, 62 NY2d 877; People v Newman, 32 NY2d 379, 414 US 1163; People v Wurzler, 300 NY 344.)
   OPINION OF THE COURT

Read, J.

On July 15, 2003, defendant Scott G. Mitchell was arrested in Essex County and charged with driving while intoxicated (see

Vehicle and Traffic Law § 1192 [2], [3]), which was elevated to a felony on account of his misdemeanor conviction of this same crime in June 2000 (see Vehicle and Traffic Law § 1193 [1] [c]); aggravated unlicensed operation of a motor vehicle in the first degree, also a felony (see Vehicle and Traffic Law § 511 [3]); and speeding. On November 25, 2003, he pleaded guilty in the County Court of Essex County (Essex County Court) to felony driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the second degree, a misdemeanor (see Vehicle and Traffic Law § 511 [2]).

Defendant was sentenced to 15 weekends in jail, as well as five and three years of probation on the driving while intoxicated and aggravated unlicensed operation charges, respectively, to run concurrently. Essex County Court transferred supervision of defendant’s probation to Franklin County, where he resided, as required by Criminal Procedure Law § 410.80 (1). This statute directs that “[w]here a probationer at the time of sentencing resides in another jurisdiction within the state, the sentencing court shall transfer supervision to the appropriate probation department in such other jurisdiction” (emphasis added).

In February 2008, defendant brought a motion pursuant to Criminal Procedure Law §§ 440.10 and 440.20 in Essex County Court, seeking to set aside his 2003 felony conviction and sentence for driving while intoxicated. He asserted two grounds: that there was no information in various governmental databases containing his criminal and driving history of any conviction in June 2000 for driving while intoxicated, the predicate for his felony conviction of the same crime on November 25, 2003; and ineffective assistance of counsel. On June 11, 2008, Essex County Court denied defendant’s motion, without prejudice.

The judge reasoned that he did not have jurisdiction over defendant’s Criminal Procedure Law article 440 motion in light of Criminal Procedure Law § 410.80 (2), which provides as follows:

“Transfer of powers. Upon completion of transfer as authorized pursuant to [Criminal Procedure Law § 410.80 (1)], the probation department in the receiving jurisdiction shall assume all powers and duties of the probation department in the jurisdiction of the sentencing court. Upon completion of transfer, the appropriate court within the jurisdiction of the receiving probation department shall assume all powers and duties of the sentencing court and shall have sole jurisdiction in the case including jurisdiction over matters specified in article twenty-three of the correction law.[] Further, the sentencing court shall immediately forward its entire case record to the receiving court” (emphasis added).

Thus, Essex County Court concluded, only the County Court of Franklin County (Franklin County Court) could exercise jurisdiction over defendant’s Criminal Procedure Law article 440 motion because Franklin County Court was, in the words of section 410.80 (2), “the appropriate court within the jurisdiction of the receiving probation department,” which “assume[s] all powers and duties of the sentencing court” and possesses “sole jurisdiction in the case.”

In May 2009, the Appellate Division affirmed Essex County Court’s decision and order. The court held that Criminal Procedure Law § 410.80 (2) was “explicit in entrusting ‘all powers and duties of the sentencing court’ upon the court to which the matter has been transferred” (62 AD3d 1045, 1046 [3d Dept 2009]). While acknowledging that “logistical problems . . . [might] result” from its decision, the Appellate Division nonetheless determined that “once supervision of defendant was transferred to Franklin County, the Essex County Court no longer had jurisdiction to entertain defendant’s CPL article 440 motion” (id.). A Judge of this Court granted leave to appeal, and we now reverse.

This case boils down to whether section 410.80 (2) encompasses “all powers and duties” that might be exercised by a sentencing court under article 410 of the Criminal Procedure Law, which governs probation, conditional discharge and parole supervision, or “all powers and duties” possessed by a sentencing court more generally, including powers and duties under Criminal Procedure Law article 440, which covers postjudgment motions. The answer is not clear from the statute’s text.

Section 410.80 (2) is embedded in article 410, and the Legislature did not, for example, choose to transfer “all powers and duties” of the sentencing court to the receiving court “notwithstanding any provision of law to the contrary,” the verbal formulation frequently employed for legislative directives intended to preempt any other potentially conflicting statute, wherever found in the State’s laws. And here, section 410.80 (2)—when read to vest jurisdiction for Criminal Procedure Law article 440 motions in the receiving court—seemingly clashes with Criminal Procedure Law §§ 440.10 and 440.20. These provisions direct the court in which judgment was entered—i.e., the sentencing court—to entertain a defendant’s postjudgment motion to vacate a judgment (section 440.10) or sentence (section 440.20).

Of course, the Legislature when writing section 410.80 (2) also might have specified that this provision transferred to the receiving court “all powers and duties” of the sentencing court “under this article.” And while the Legislature vested “sole jurisdiction in the case” in the receiving court “including jurisdiction over matters specified in article twenty-three of the correction law” (emphasis added), it made no comparable reference in section 410.80 (2) to article 440 of the Criminal Procedure Law. Because different interpretations of the scope of the transfer effected by section 410.80 (2) are plausible, we now turn to its legislative history (see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583-584 [1998]).

The Legislature amended subdivisions (1) and (2) of section 410.80 in 2007, in a bill introduced at the behest of the Division of Probation and Correctional Alternatives, to “address[ ] problems associated with the intrastate transfer of probationers” (Introducer’s Mem in Support, Bill Jacket, L 2007, ch 191, at 5, 2007 NY Legis Ann, at 125). With reference to the courts, the introducer’s memorandum described in detail the problems that the Legislature sought to cure:

“Under current law, a sentencing court may make a complete transfer of jurisdiction over a probationer, or it may retain its powers and duties with respect to a probationer whose supervision is being transferred to another jurisdiction. The sentencing court may retain the powers enumerated in Criminal Procedure Law §§ 410.20 (Modification or Enlargement of Conditions), 410.30 (Declaration of Delinquency), 410.40 (Notice to Appear, Warrant), 410.50(3) (Search Order), and 410.60 (Appearance Before - Court), even when all supervision is performed by the probation department in the receiving jurisdiction. Even in cases where the sending court has retained jurisdiction, it is the responsibility of the probation department in the receiving jurisdiction to initiate violation proceedings with the receiving court if there is reasonable cause to believe that a probationer has violated a condition of his or her sentence. In such instances, the receiving court may transfer the case back to the sentencing court or it may conduct a violation of probation hearing and continue or modify the sentence if appropriate. However, if the sending court has retained its powers and duties over the case, the court in the receiving jurisdiction may not revoke the sentence of probation. Instead, if the court in the receiving jurisdiction sustains the violation and chooses not to continue or modify the sentence, the receiving court must return the probationer to the sending jurisdiction for further legal action” (Introducer’s Mem in Support, Bill Jacket, L 2007, ch 191, at 5-6, 2007 NY Legis Ann, at 125-126).

This potential for divided judicial authority over probation matters created “considerable confusion in [the] handling and reporting of cases and duplication of efforts between the sending and receiving jurisdictions” (Introducer’s Mem in Support, Bill Jacket, L 2007, ch 191, at 6, 2007 NY Legis Ann, at 126; see also Mem to David Nocenti, Counsel to Governor, from Linda J. Valenti, Counsel, Div of Probation and Correctional Alternatives, Bill Jacket, L 2007, ch 191, at 11 [“Current law has . . . led to considerable confusion among practitioners and members of the judiciary in terms of powers retained and limited”]). The transfer of “all powers and duties of the sentencing court” to the receiving court was designed to reduce this uncertainty and enable probation officers to supervise probationers more efficiently: “[t]his legislation will ensure that the courts in the sending jurisdiction are not handling probation cases that are being supervised in another county, and that the courts in the receiving jurisdiction are not constrained in their ability to administer such cases properly and efficiently” (Introducer’s Mem in Support, Bill Jacket, L 2007, ch 191, at 6, 2007 NY Legis Ann, at 126).

In sum, the amendments to section 410.80 (2) were meant to transfer from sentencing courts to receiving courts the full range of powers and duties necessary for the judiciary to carry out its responsibilities to enforce the terms and conditions of probationers, and to deal with relief from forfeitures and disabilities. There is no suggestion in the statute’s text or legislative history that the Legislature intended, in addition, to divest sentencing courts of their jurisdiction under article 440 of the Criminal Procedure Law.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to County Court for further proceedings on defendant’s Criminal Procedure Law article 440 motion.

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

Order reversed, etc.

      . Transfer of probation is discretionary where the probationer, after the probation sentence has been pronounced, desires to reside in a jurisdiction in the state not served by the sentencing court (see CPL 410.80 [1]).

      . In April 2008, defendant filed a supplemental motion that sought to vacate his conviction and sentence for aggravated unlicensed operation, too.

      . Article 23 governs discretionary relief from forfeitures and disabilities automatically imposed by law, such as a certificate of relief from disabilities, which may be issued by a court.


source: Caselaw Access Project

author: Pigott, J. Smith, J. (dissenting).

license: Public Domain

text:
    [931 NE2d 526, 905 NYS2d 542]
    The People of the State of New York, Respondent, v James Dreyden, Appellant.
    Argued April 29, 2010;
    decided June 15, 2010

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (John Schoeffel and Steven Banks of counsel), for appellant.
    The complaint charging criminal possession of a gravity knife was conclusory and jurisdictionally defective under People v Dumas (68 NY2d 729 [1986]) when it merely asserted that Mr. Dreyden was “in possession of a gravity knife” without any factual allegation establishing that the knife was operational in the manner specified by Penal Law § 265.00 (5). (People v Kalin, 12 NY3d 225; Matter of Rodney J., 83 NY2d 503; People v Alejandro, 70 NY2d 133; People v Jones, 9 NY3d 259; People v Hall, 48 NY2d 927; People v Case, 42 NY2d 98; People v Casey, 95 NY2d 354; Whiteley v Warden, Wyo. State Penitentiary, 401 US 560; Giordenello v United States, 357 US 480; People v Hendricks, 25 NY2d 129.)

      Charles J. Hynes, District Attorney, Brooklyn (Terry-Ann Llewellyn, Ann Bordley and Leonard Joblove of counsel), for respondent.
    Defendant forfeited his claims concerning the sufficiency of the factual allegations in the accusatory instrument. In any event, the accusatory instrument was facially sufficient. (People v Keizer, 100 NY2d 114; People v Weinberg, 34 NY2d 429; People v Kalin, 12 NY3d 225; People v Hansen, 95 NY2d 227; People v Konieczny, 2 NY3d 569; People v Taylor, 65 NY2d 1; People v Scott, 3 NY2d 148; People v Case, 42 NY2d 98; People v Casey, 95 NY2d 354; People v lannone, 45 NY2d 589.)
   OPINION OF THE COURT

Pigott, J.

On the evening of June 2, 2007, a police officer stopped a van on a street corner in Brooklyn for a traffic violation. The officer recovered a knife and a ziplock bag containing marihuana from defendant James Dreyden, who was a passenger in the vehicle. Defendant was charged in a misdemeanor complaint with unlawful possession of marihuana and criminal possession of a weapon in the fourth degree. He waived his right to prosecution by information and pleaded guilty to the weapon charge, in full satisfaction of the accusatory instrument, in exchange for a sentence of time served.

Defendant then appealed his conviction, arguing that the accusatory instrument was jurisdictionally defective. Defendant pointed out that the misdemeanor complaint included no nonconclusory allegations establishing the basis of the arresting officer’s belief that defendant’s knife was a gravity knife as defined in the statute—only a conclusory statement that the police officer had observed defendant in possession of a gravity knife and recovered one from him. The Appellate Term affirmed the judgment of conviction and sentence, holding that an accusatory instrument need not contain the statutory criteria for a gravity knife or state that the knife was operational in order to satisfy jurisdictional requirements (23 Misc 3d 34 [2009]).

A Judge of this Court granted leave to appeal (12 NY3d 924 [2009]). We now reverse.

“The factual part of a misdemeanor complaint must allege ‘facts of an evidentiary character’ (CPL 100.15 [3]) demonstrating ‘reasonable cause’ to believe the defendant committed the crime charged (CPL 100.40 [4] [b])” (People v Dumas, 68 NY2d 729, 731 [1986]). For example, where a misdemeanor complaint charges that a defendant sold marihuana, the charge must be “supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually marihuana” (id. at 731). A mere “conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement” (People v Kalin, 12 NY3d 225, 229 [2009]). The marihuana possession charge in defendant’s accusatory instrument met this requirement. Defendant argues that the weapon charge did not.

The People contend that, by pleading guilty, defendant forfeited his right to challenge the accusatory instrument charging him with the crime to which he has admitted guilt. “A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v Case, 42 NY2d 98, 99 [1977] [citation omitted]; see also People v Hansen, 95 NY2d 227, 230 [2000]). The distinction between jurisdictional and nonjurisdictional defects “is between defects implicating the integrity of the process . . . and less fundamental flaws, such as evidentiary or technical matters” (Hansen, 95 NY2d at 231).

The dissent asserts that the test for whether a flaw in an accusatory instrument is jurisdictional is whether that flaw consisted of an omission of elements of the charged crime (dissenting op at 105). We do not construe jurisdictional defects so narrowly. The test is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy (see Kalin, 12 NY3d at 231-232; see also People v Casey, 95 NY2d 354, 366 [2000]). Here, the misdemeanor complaint, insofar as it described the arresting officer’s conclusion that defendant had a gravity knife, failed to give any support or explanation whatsoever for the officer’s belief. That violation of the “reasonable cause” requirement amounted to a jurisdictional defect.

The People argue in the alternative that the rationale for the “reasonable cause” requirement applicable to a charge alleging possession of a controlled substance—that professional skill is required on the part of an arresting officer who identifies something as a controlled substance—does not apply to a charge alleging possession of a gravity knife. We disagree.

Not every knife is a weapon for purposes of Penal Law § 265.01 (1), which specifically outlaws possession of a gravity

knife, among other weapons. The Penal Law defines a gravity knife as one with a blade that (1) “is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force” and that (2) “when released, is locked in place by means of a button, spring, lever or other device” (Penal Law § 265.00 [5]). This definition distinguishes gravity knives from certain folding knives that cannot readily be opened by gravity or centrifugal force (see United States v Irizarry, 509 F Supp 2d 198, 210 [ED NY 2007]). It further “requires that the blade lock in place automatically upon its release and without further action by the user” (People v Zuniga, 303 AD2d 773, 774 [2d Dept 2003]), distinguishing a gravity knife from, for example, a “butterfly knife,” which requires manual locking (see id.).

A conclusory statement that an object recovered from a defendant is a gravity knife does not alone meet the reasonable cause requirement. An arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in defendant’s possession was a gravity knife. Here, the accusatory instrument contained no factual basis for the officer’s conclusion that the knife was a gravity knife, as opposed to a pocket knife, craft knife or other type of knife that does not fit the definition of a per se weapon as defined in Penal Law article 265.

Accordingly, the order of the Appellate Term should be reversed, and, since defendant has already served his sentence, the misdemeanor complaint should be dismissed.

Smith, J. (dissenting).

I do not quarrel with the majority’s conclusion that the accusatory instrument was defective because it did not explain how the police officer knew that the weapon defendant possessed was a gravity knife. But I see no basis for holding that this was a jurisdictional defect—one that can be raised on appeal even though defendant pleaded guilty without complaining about it.

It seems self-evident, and we have often held, that only the gravest flaws in a prosecution justify permitting a defendant to raise on appeal an issue he did not raise below. As we said in People v Casey (95 NY2d 354, 366 [2000]):

“From the inception of our case law on this subject, the failure to preserve has been excused for only the most fundamental procedural irregularities. . . . [I]t is only ‘where “the error complained of goes to the essential validity of the proceedings conducted below” such that “the entire trial is irreparably tainted” [that] it need not be preserved to present a question of law reviewable by this Court’ (People v Agramonte, 87 NY2d 765, 770 [quoting People v Patterson, 39 NY2d 288, 295-296] [emphasis supplied]).”

We added in Casey: “Pleading errors involving omission of elements of the charged crime are fundamental. They impair a defendant’s basic rights to fair notice sufficient to enable preparation of a defense and to prevent double jeopardy” (id.).

Thus, under Casey, the test for whether a flaw in an accusatory instrument is jurisdictional is whether that flaw consisted of an “omission of elements of the charged crime”—the sort of error that could impair the defendant’s right to fair notice or create a potential double jeopardy problem. We reaffirmed this approach last year in People v Kalin (12 NY3d 225, 230 [2009]; see also People v Konieczny, 2 NY3d 569, 575 [2004]).

Here, no element of the crime with which defendant was charged was omitted from the accusatory instrument. The majority suggests that the error at issue deprived him of fair notice or put him at a risk of double jeopardy (majority op at 103), but it does not explain why, and I think the suggestion is clearly wrong. The accusatory instrument told defendant that he was charged with possessing a gravity knife. While more explanation might have been preferable (see Kalin, 12 NY3d at 232), the instrument as written could not have interfered with defendant’s ability to prepare his defense; nor could it have prevented him from pleading either a conviction or acquittal in this case as a bar to a subsequent prosecution.

No useful purpose is served by labeling the defect in this case “jurisdictional.” Today’s decision merely creates one more situation in which the consequence of an essentially trivial error is magnified, and the process of prosecuting and punishing offenders is made more difficult.

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

Order reversed, etc.


author: Pigott, J. Cipabick, J. (dissenting).

text:
    [931 NE2d 70, 905 NYS2d 101]
    The People of the State of New York, Respondent, v Damien Devone, Apellant. The People of the State of New York, Respondent, v Saddiq Abdur-Rashid, Appellant.
    Argued April 27, 2010;
    decided June 8, 2010

      POINTS OF COUNSEL

      Mark J. Caruso, Public Defender, Schenectady (Kent J. Gebert of counsel), for appellant in the first above-entitled action.
    I. Trooper Wheeler’s use of narcotics detecting canine “Kane” to “canine sniff” the exterior of the motor vehicle in which defendant Damien Devone was a passenger constitutes a search within the meaning of article I, § 12 of the New York State Constitution. (People v Reyes, 154 Misc 2d 476; People v Ramirez Portoreal, 88 NY2d 99; People v Natal, 75 NY2d 379; People v Reynolds, 71 NY2d 552; Katz v United States, 389 US 347; People v Young, 207 AD2d 465; People v Class, 63 NY2d 491; People v Mercado, 68 NY2d 874; People v Whitfield, 81 NY2d 904; People v Rodriguez, 69 NY2d 159.) II. Trooper Wheeler and Officer Borwhat did not meet the reasonable suspicion standard to conduct a search for illicit contraband when they performed the traffic stop. New York courts have afforded greater protection against intrusive searches under New York State Constitution, article I, § 12 than has been provided under the Fourth Amendment to the United States Constitution. (People v Scott, 79 NY2d 474; People v Reynolds, 71 NY2d 552; People v P.J. Video, 68 NY2d 296; People v Dunn, 77 NY2d 19; People v Young, 207 AD2d 465; People v De Bour, 40 NY2d 210; People v Offen, 78 NY2d 1089; People v Willette, 42 AD3d 674; People v Carter, 199 AD2d 817; Illinois v Caballes, 543 US 405.)

      Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent in the first above-entitled action.
    I. The use of a drug detecting dog to smell the air on the exterior of an individual’s vehicle does not constitute a search under either the United States or New York Constitution. (People v Manganaro, 176 AD2d 354; People v Chestnut, 43 AD2d 260; People v Price, 54 NY2d 557; People v Offen, 78 NY2d 1089; People v Gathogo, 276 AD2d 925; People v Leon, 23 AD3d 1110; People v Martin, 169 AD2d 1006; People v Belton, 55 NY2d 49; People v Weaver, 12 NY3d 433; Illinois v Caballes, 543 US 405.) II. If the use of a drug detecting dog constitutes a search under New York State law, such use was appropriate because the police possessed a founded suspicion of criminal activity. (People v Carter, 199 AD2d 817; People v Battaglia, 206 AD2d 916; People v Hollman, 79 NY2d 181; People v Yancy, 86 NY2d 239; People v Harrison, 57 NY2d 470; People v Kelly, 37 AD3d 866.)

      Peter B. Meadow, Woodbourne, for appellant in the second above-entitled action.
    I. Under article I, § 12 of the New York State Constitution, a canine sniff of a vehicle should only be authorized if there is reasonable suspicion that the vehicle contains illegal drugs. (United States v Place, 462 US 696; Illinois v Caballes, 543 US 405; United States v Jacobsen, 466 US 109; People v Dunn, 77 NY2d 19; United States v Thomas, 757 F2d 1359; People v Moore, 6 NY3d 496; People v De Bour, 40 NY2d 210; Terry v Ohio, 392 US 1; Camara v Municipal Court of City & County of San Francisco, 387 US 523; Warden, Md. Penitentiary v Hayden, 387 US 294.) II. The trial court erred in denying defendant’s motion to suppress as the use of the canine to sniff the car was not based on reasonable suspicion or founded suspicion of the presence of illicit drugs. (Illinois v Caballes, 543 US 405; People v Willette, 42 AD3d 674; People v Dunn, 77 NY2d 19; United States v Richardson, 385 F3d 625; United States v Santos, 403 F3d 1120.) III. The Court of Appeals should reevaluate the application of the “automobile exception” to the New York State Constitution protection against governmentally intrusive searches and seizures and prohibit warrantless automobile searches absent exigent circumstances. (Katz v United States, 389 US 347; New York v Belton, 453 US 454; Pennsylvania v Labron, 518 US 938; United States v Ross, 456 US 798; California v Carney, 471 US 386; People v Weaver, 12 NY3d 433; People v Blasich, 73 NY2d 673; People v Gokey, 60 NY2d 309; People v Scott, 79 NY2d 474; People v Dunn, 77 NY2d 19.)

      Beth G. Cozzolino, District Attorney, Hudson (Henry Neal Conolly of counsel), for respondent in the second above-entitled action.
    I. A canine search is permissible and should be authorized under the New York State Constitution under well-meant and continued precedent. (People v Dunn, 77 NY2d 19; United States v Place, 462 US 696; People v De Bour, 40 NY2d 210; People v Devone, 57 AD3d 1240, 12 NY3d 852; Terry v Ohio, 392 US 1.) II. The County Court and the Appellate Division did not err in holding that there was a founded suspicion or reasonable basis to sustain the canine sniff of the exterior of defendant’s vehicle. (People v De Bour, 40 NY2d 210; People v Pierre, 8 AD3d 904.) III. Under existing precedent, where appellant had diminished expectations of privacy in his vehicle, Trooper Col-well had a reasonable suspicion for a canine sniff and probable cause to search the trunk of appellant’s car. No change to New York State precedent is implicated. (People v Gathogo, 276 AD2d 925, 96 NY2d 734; People v Guido, 175 AD2d 364; United States v Ross, 456 US 798; People v Weaver, 12 NY3d 433; People v Dunn, 77 NY2d 19.)
   OPINION OF THE COURT

Pigott, J.

These appeals raise two issues, whether a canine sniff of the exterior of a lawfully stopped vehicle constitutes a search under article I, § 12 of our State Constitution and, if so, what level of suspicion is required before law enforcement can conduct that search. We hold that such action constitutes a search requiring founded suspicion that criminal activity is afoot and that, in each of these cases, such founded suspicion was established. The orders of the Appellate Division should therefore be affirmed.

People v Devone

On August 1, 2007, two police officers pulled over a vehicle after observing its operator, Troy Washington, talking on a cell phone. Washington, who was unable to produce his driver’s license or registration, told the officers that the vehicle was registered to his cousin. Asked his cousin’s name, Washington said that he did not know. When the officer asked for the cousin’s whereabouts he pointed to defendant, who was seated in the passenger seat. When the officers ran the license number they discovered that the vehicle, while not reported stolen, was registered to a female. Because of the “suspicious inconsistencies” in Washington’s answers, the officers decided to conduct a canine sniff of the exterior of the vehicle. Washington and defendant were ordered out of the vehicle, and the officers retrieved a dog, trained in detecting narcotics, from their SUV

After sniffing the exterior of the vehicle, the dog “alerted” at the pillar between the driver and rear passenger seat windows, indicating to the officers the presence of drugs. One of the officers opened the driver’s side door and commanded the dog to search. The dog scratched at the console between the driver and passenger seats. A search of the console uncovered a quantity of crack cocaine.

Subsequent to his indictment for criminal possession of a controlled substance in the third and fourth degrees, defendant moved to suppress the drugs as the product of an illegal search. After a hearing, County Court held that the canine sniff constituted a search, and that the police lacked reasonable suspicion to conduct the canine sniff. The Appellate Division, Third Department reversed, holding that the police needed only founded suspicion as opposed to a reasonable suspicion to conduct a canine sniff of the vehicle’s exterior (57 AD3d 1240, 1242-1243 [3d Dept 2008]).

People v Abdur-Rashid

On July 27, 2007 at 10:30 a.m., a police officer effected a lawful stop of defendant’s vehicle, which had no front license plate. Although the officer initially suspected that defendant’s insurance had lapsed, he received verification from the insurance carrier that the insurance was in effect. The officer wrote defendant a ticket for a missing front license plate and expired inspection sticker, but permitted defendant to go on his way.

Approximately 45 minutes later, another police officer effected a lawful stop of defendant’s vehicle on the Taconic State Parkway in Columbia County, having observed that it was missing its front license plate and had sticks, twigs and other debris protruding from the front of it. A check of the license number showed that defendant was the registered owner of the vehicle, but also showed, incorrectly, that the insurance on the vehicle had lapsed.

Defendant showed the officer a ticket he had been issued for the inspection sticker violation, and apprised the officer about the prior stop and insurance mix-up. Unsure whether defendant had shown him all previously-issued tickets, the officer directed defendant out of the vehicle. The officer tried to contact the first officer by cell phone and police radio to verify defendant’s account, but was unable to do so. During this time, defendant stood outside the passenger side of the SUV According to the officer’s suppression testimony, defendant “started to get a little fidgety and nervous,” was “leaning towards my vehicle and [was] trying to look through the window, towards the back” at the narcotics-sniffing dog. The officer told defendant, “Yeah, I really do have a dog in here.” Defendant responded, “I already got my ticket today. Can’t you just let me go? I need to go.”

The officer returned to defendant’s vehicle and spoke with the passenger, Ekwambu Gayle, who had remained seated. Gayle gave the officer a convoluted tale of being involved in a minor accident upon entering the roadway, concluding with an implausible story that defendant picked him up on Long Island, that his job was to keep defendant awake en route to Schenectady, and that defendant was going to drive back from Schenectady to Brooklyn to drop Gayle off mid-afternoon and then return, alone, to Schenectady later that evening.

Suspecting more than a joy ride, the officer directed Gayle out of the vehicle and retrieved his narcotics-sniffing dog from the SUV As the dog circled the vehicle, it “alerted” to the driver’s side door and attempted to climb through the window. When the officer opened the door the dog jumped into the backseat and “alerted” near the rear speaker on the passenger side. After removing the dog from the vehicle, the officer took the keys from the ignition and walked the dog toward the rear of the vehicle. The dog once again “alerted” and the officer opened the trunk. There he found a black duffel bag, which the dog tried to grab from his hands. Defendant claimed no knowledge of the duffel bag. Upon inspection, it was found to contain two freezer bags of cocaine.

Following defendant’s indictment for criminal possession of a controlled substance in the first degree, County Court conducted a suppression hearing and concluded that the search was lawful. The Appellate Division, Third Department affirmed, holding that the officer properly conducted an exterior canine sniff of the vehicle based upon “a founded suspicion that criminality was afoot” (64 AD3d 1087, 1089 [3d Dept 2009]).

Leave to appeal to this Court was granted in both cases and we now affirm.

In People v Dunn, this Court held as a matter of state constitutional law that the use of a canine sniff in the hallway of an apartment building to detect the presence of controlled substances inside an apartment constitutes a search (77 NY2d 19, 25 [1990], cert denied 501 US 1219 [1991]). We rejected the Supreme Court’s approach in United States v Place (462 US 696 [1983]) that a canine sniff does not constitute a search because it discloses only the presence or absence of contraband, observing “that the fact that a given investigative procedure can disclose only evidence of criminality should have little bearing on whether it constitutes a search” (Dunn, 77 NY2d at 24). Rather, we concluded that the analysis should “focus on whether there has been an intrusion into an area where an individual has a reasonable expectation of privacy” (id. at 25 [emphasis supplied]).

We applied a similar standard in People v Price, where we held that the canine sniff of the defendant’s luggage did not violate either federal or state constitutional standards or statutory law (54 NY2d 557, 564 [1981]). Our analysis, once again under state law, centered on the reduced expectation of privacy one has relative to luggage placed in the hands of a common carrier (see id. at 563-564; Dunn, 77 NY2d at 24).

Based on our state jurisprudence, therefore, whether a canine sniff constitutes a search is necessarily dependent upon whether it constitutes an intrusion into a place where a person has a reasonable expectation of privacy. One clearly has a greater expectation of privacy in one’s home than in an automobile (see New York v Class, 475 US 106, 112-113 [1986]), but that does not render the latter interest undeserving of constitutional protection (see Arizona v Gant, 556 US —, —, 129 S Ct 1710, 1720 [2009] [addressing warrantless searches of automobiles]). There is a legitimate, albeit reduced, expectation of privacy in an automobile. But that expectation is greater than the significantly reduced expectation of privacy one has in luggage turned over to a common carrier. We therefore hold that a canine sniff of the exterior of an automobile constitutes a search under article I, § 12.

In both of these cases the Appellate Division properly concluded that the officers’ “founded suspicion” that criminality was afoot provided sufficient grounds for the search. While the more demanding “reasonable suspicion” standard applies to a canine sniff outside the door of one’s residence (see Dunn, 77 NY2d at 26), there is a “diminished expectation of privacy attributed to individuals and their property when traveling in an automobile” (People v Yancy, 86 NY2d 239, 246 [1995]). It follows that law enforcement need only meet a lesser standard before conducting a canine sniff of the exterior of a lawfully stopped vehicle. Given that diminished expectation of privacy, coupled with the fact that canine sniffs are far less intrusive than the search of a residence and provide “significant utility to law enforcement authorities” (Dunn, 77 NY2d at 26), application of the founded suspicion standard in these cases is appropriate.

There is record support in each of these appeals for the Appellate Division holdings that police possessed a founded suspicion to conduct the canine sniff. In Devone, Washington’s inability to produce his driver’s license and registration for the vehicle, coupled with his responses that his cousin owned the vehicle, that he did not know his cousin’s name, and that defendant was his cousin—together with the fact that the vehicle was registered to a female and not defendant—gave the officers a founded suspicion that criminal activity was afoot, justifying the canine sniff. Similarly, in Abdur-Rashid, the condition of defendant’s vehicle, the unusual travel plans of defendant and Gayle, and defendant’s “nervous” behavior gave the officer a similar founded suspicion that criminal activity was afoot.

Accordingly, the orders in Devone and Abdur-Rashid should be affirmed.

Cipabick, J. (dissenting).

Because I believe that the reasonable suspicion standard should be met before law enforcement conducts an exterior canine sniff of a vehicle, I respectfully dissent.

In People v Dunn (77 NY2d 19 [1990]), we held that an exterior canine sniff constitutes a search within the meaning of article I, § 12 of the New York Constitution (id. at 25). We further held that reasonable suspicion that defendant’s apartment contained illegal drugs was required before law enforcement could conduct a canine sniff in the common hallway outside the apartment (id. at 26). To determine this standard, we balanced the degree of the search’s intrusion against its utility (see id.-, see also People v Kuhn, 33 NY2d 203, 209 [1973] [reasonableness of search determined “by ‘balancing the need to search against the invasion which the search entails’ ”]). Because exterior canine sniffs are “uniquely discriminate and nonintrusive” and of “significant utility to law enforcement authorities,” we found that they “may be used without a warrant or probable cause, provided that the police have a reasonable suspicion that a residence contains illicit contraband” (Dunn, 77 NY2d at 26). Conducting the same balancing here, I do not see any reason to depart from the reasonable suspicion standard we articulated in Dunn.

It is well-settled that an individual has a legitimate expectation of privacy with respect to spaces within a vehicle that cannot be viewed from the outside (see People v Class, 63 NY2d 491, 495 [1984]), and law enforcement must usually have probable cause before searching any of these areas (see People v Yancy, 86 NY2d 239, 245 [1995]). This is, of course, the same level of suspicion required before law enforcement may search a residence (see e.g. People v Brown, 96 NY2d 80, 88 [2001]), though automobile searches may be conducted without a warrant (see Yancy, 86 NY2d at 245-246). While it is true that, generally speaking, an individual has a lesser expectation of privacy in a car than in a home (see Yancy, 86 NY2d at 245-246), this distinction has never affected the standard required to search areas of a vehicle shielded from outside view, and it should not now justify a search of these private spaces based on mere founded suspicion rather than the reasonable suspicion standard applied to residences and their thresholds (see Dunn, 77 NY2d at 26). Indeed, prior to today, the predicate of founded suspicion of criminality adopted by the majority would have permitted no more than a request to search, not a search itself (see People v Dunbar, 5 NY3d 834, 835 [2005]; People v Hollman, 79 NY2d 181, 191-192 [1992]).

Where our law distinguishes between vehicular and residential privacy, it does so because of pragmatic considerations not present in this case. The automobile exception to the warrant requirement, for example, was born of expediency, not a general finding that private areas of a vehicle are not entitled to protection (Yancy, 86 NY2d at 245-246 [considering “the mobility of the vehicle and the corresponding probability that any contraband contained therein will quickly disappear, and the diminished expectation of privacy attributed to individuals and their property when travelling in an automobile”]). Here, unlike in Yancy, there is no reason why the contents of a car’s trunk or console should be afforded less constitutional protection than the contents of one’s home. In fact, the officers in Yancy were justified in conducting a warrantless search of the automobile based on “incidental observation of hundreds of separately packaged empty vials and caps in open view following a valid automobile stop” (id. at 246). Thus, I believe that, as in Dunn, the minimal intrusiveness of an exterior canine sniff justifies requiring such a search to be predicated on reasonable suspicion.

Moreover, the predicate for a canine sniff selected by the majority, founded suspicion that criminal activity is afoot, is divorced from the realities of the encounter. By way of example, the canine in Devone could not assist the officers in ascertaining whether defendant’s vehicle was stolen, as originally suspected. Trained canines are capable only of detecting drugs. Yet the majority allows such a search without requiring any suspicion of illegal drug activity. Without a nexus between the suspicion held by the police and the capability of the canine, the probe sanctioned by the majority is but a fishing expedition.

Particularly in light of New York’s strong tradition of protecting our citizens from unreasonable searches under article I, § 12 of the New York Constitution, I believe the appropriate level of suspicion that must be present before law enforcement conducts an exterior canine sniff search of a vehicle is the standard of reasonable suspicion of the presence of illicit drugs in the vehicle, not the lesser “founded suspicion” standard chosen by the majority here.

Accordingly, I would reverse both orders of the Appellate Division.

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

In each case: Order affirmed.

       Under our traditional De Bour formulation governing the appropriate level of suspicion in police-citizen encounters, level one requires that police have “an objective, credible reason, not necessarily indicative of criminality”; level two requires “a founded suspicion that criminal activity is afoot”; level three requires “a reasonable suspicion that the particular individual was involved in a felony or misdemeanor”; and level four “requires probable cause to believe that the person . . . has committed a crime” (People v Moore, 6 NY3d 496, 498-499 [2006]; see also People v De Bour, 40 NY2d 210, 223 [1976]).


author: Smith, J. Jones, J. (dissenting).

text:
    [931 NE2d 520, 905 NYS2d 536]
    The People of the State of New York, Respondent, v Samuel McLean, Appellant.
    Argued May 6, 2010;
    decided June 10, 2010

      POINTS OF COUNSEL

      Danielle Neroni Reilly, Albany, for appellant.
    Appellant’s right to counsel indelibly attached when his attorney entered the criminal matter under investigation. (People v West, 81 NY2d 370; People v Harris, 77 NY2d 434; People v Settles, 46 NY2d 154; People v Cunningham, 49 NY2d 203; People v Di Biasi, 7 NY2d 544; People v Grice, 100 NY2d 318; People v Hobson, 39 NY2d 479; People v Schaeffer, 56 NY2d 448; People v Marrero, 51 NY2d 56; People v Garofolo, 46 NY2d 592.)

      Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
    I. The record does not contain

      sufficient facts to permit review of whether the inculpatory statements of December 11, 2006 were obtained in violation of defendant’s right to counsel. (People v Kinchen, 60 NY2d 772; People v Samuels, 49 NY2d 218; People v Charleston, 54 NY2d 622; People v Berezansky, 229 AD2d 768, 89 NY2d 919; People v Brown, 46 AD3d 1128; People v Marrero, 51 NY2d 56.) II. Defendant’s right to counsel did not attach at the time of his debriefing on an unrelated case as a part of his cooperation agreement upon his plea to a robbery. (People v West, 81 NY2d 370; People v Lyons, 4 AD3d 549; People v Brown, 46 AD3d 1128; People v Vella, 21 NY2d 249; People v Hobson, 39 NY2d 479; People v Bing, 76 NY2d 331; People v Samuels, 49 NY2d 218.)
   OPINION OF THE COURT

Smith, J.

We have held that, where a defendant’s statement to law enforcement authorities is obtained in violation of his right to counsel, the use of that statement against defendant at trial is an error that may be raised on appeal, even if the issue was not preserved. Appellate review of such an unpreserved error is available, however, only when the error is established on the face of the record. Here, the record is inadequate, and we therefore cannot review the right to counsel issue.

Defendant pleaded guilty to a 16-count indictment charging him with various crimes, including two counts of murder in the second degree, relating to the fatal shooting of Leonder Goodwin on January 27, 2002. On appeal from his conviction, he challenges County Court’s refusal to suppress, after a Huntley hearing, statements he made at a meeting with two police officers in December 2006. At the Huntley hearing, defendant argued that his statements were involuntary, but made no claim that he had been deprived of his right to counsel. He raised a right to counsel claim for the first time in the Appellate Division, which declined to consider it, saying that while the lack of preservation “does not necessarily foreclose defendant from raising this issue on appeal,” the record here “is bereft of material evidence sufficient to permit appellate review of this claim” (People v McLean, 59 AD3d 861, 864 [3d Dept 2009]). A Judge of this Court granted leave to appeal (12 NY3d 927 [2009]), and we now affirm.

Defendant’s argument that he was deprived of his right to counsel is based on the record of the Huntley hearing. That record shows that no lawyer was present at the December 2006 meeting when defendant described his role in the Goodwin homicide to two detectives. However, defendant had talked about the same crime to the same detectives three years earlier, in October 2003, in the presence of his lawyer, Steven Kouray. At that time defendant was awaiting sentencing on an unrelated robbery charge, and had entered a cooperation agreement to supply information about the Goodwin murder in exchange for the chance of a more favorable sentence on the robbery. Defendant claims that his right to counsel indelibly attached at or before the 2003 meetings, and that he therefore could not be questioned again on the same subject in 2006 without a waiver of that right in counsel’s presence (see People v Arthur, 22 NY2d 325 [1968]; People v West, 81 NY2d 370 [1993]).

Arthur held that “[o]nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel” (22 NY2d at 329). West expressed the same rule by saying that “the right to counsel attaches indelibly where an uncharged individual has actually retained a lawyer in the matter at issue” (81 NY2d at 373-374). The parties here dispute whether, at the time of the 2003 meetings, Kouray had entered “the proceeding” or was retained in “the matter at issue”—i.e., whether he then represented defendant in connection with the Goodwin homicide. The People say that Kouray represented defendant only in the robbery case, and was involved in discussions of the murder case only as it affected defendant’s robbery sentence; defendant says that this is a spurious distinction, and that Kouray was representing him in both matters. We conclude that we may not resolve the dispute, because the failure to raise the issue in the trial court has resulted in an inadequate record.

We recognized in Arthur that right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed on appeal (22 NY2d at 329 [“The failure to object ... on right to counsel grounds is not fatal since we are concerned with the deprivation of a fundamental constitutional right”]). In support of our holding we cited People v McLucas (15 NY2d 167, 172 [1965]), where we endorsed the proposition “that no exception is necessary to preserve for appellate review a deprivation of a fundamental constitutional right.” Though this sweeping statement is no longer good law (see People v De Renzzio, 19 NY2d 45, 50 [1966]; People v Thomas, 50 NY2d 467, 473 [1980]), we have continued to follow the holding of Arthur that claims like the one made in this case need not be preserved (People v Kinchen, 60 NY2d 772, 773 [1983] [“a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved by having been specifically raised in a suppression motion or at trial”]; People v Samuels, 49 NY2d 218, 221 [1980]; People v Ermo, 47 NY2d 863, 865 [1979]; but cf. id. at 865-866 [Jasen, J, concurring]; see also People v Ramos, 99 NY2d 27, 30 [2002]). On this appeal, no party asks us to depart from this line of cases, and we do not do so.

The Arthur exception to the preservation requirement, however, has an important limitation, which we find decisive here. As we said in Ramos, the rule “authorizing review of unpreserved constitutional right-to-counsel claims” has been applied “only when the constitutional violation was established on the face of the record” (99 NY2d at 37). Similarly, in Kinchen we explained that the exception to the preservation requirement “does not . . . dispense with the need for a factual record sufficient to permit appellate review” (60 NY2d at 773-774). We held the record inadequate in Kinchen because, among other reasons, there was no proof in the record “that defendant was represented by counsel in connection with . . . any pending charge” (id. at 774).

We now make clear that the lack of an adequate record bars review on direct appeal not only where vital evidence is plainly absent, as in Kinchen, but wherever the record falls short of establishing conclusively the merit of the defendant’s claim. Simple fairness, and respect for orderly procedure, require this stringent approach. Where the right to counsel claim is not raised in the trial court, neither the People nor the trial judge have reason to know that it is in the case. Thus the People may not elicit evidence that is crucial to a decision on the issue; and, even if all the evidence is before it, the trial court may have no reason to make findings of fact relevant to the right to counsel claim. Thus where the record does not make clear, irrefutably, that a right to counsel violation has occurred, the claimed violation can be reviewed only on a post-trial motion under CPL 440.10, not on direct appeal.

The record created at the Huntley hearing here does not provide an adequate basis for review. We assume, without deciding, that the evidence presented at the hearing would support a holding that Kouray was defendant’s lawyer in connection with the homicide, and that therefore the indelible right to counsel attached. Even on that assumption, we cannot say that no evidence the People might have presented would lead us to hold otherwise. The officers who testified at the hearing were not asked, and did not say, what they knew, and what conclusions they drew, about defendant’s relationship with his lawyer. Kouray himself, as the Appellate Division pointed out, did not testify. (We do not consider a later affirmation by Kouray, not part of the record, which was submitted to the Appellate Division with defendant’s brief.) We will not speculate on precisely what evidence from the officers, from Kouray or possibly from other sources might serve to rebut any showing that defendant’s right to counsel was violated. We are satisfied that such a rebuttal is not impossible, and that is enough to make review on direct appeal inappropriate in this case.

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

Jones, J. (dissenting).

Because I believe defendant’s conviction was obtained in violation of his right to counsel, I respectfully dissent.

Defendant was questioned on two occasions concerning a homicide which occurred in 2002. He was first questioned in 2003 in the presence of his attorney. He gave a detailed statement concerning the murder. He was again questioned in 2006 by the same detective but without counsel being present. In 2007, defendant was convicted of numerous charges on a plea of guilty. His plea followed a Huntley hearing after which the court ruled that the statement made to the investigating detective in 2006 could be used against him at his trial. Based on these facts, the issue presented here is whether defendant was represented in this matter when he was first questioned in 2003. As will be demonstrated below, defendant’s plea was obtained in violation of his rights (including the right to counsel) as it was based on a statement made without his attorney being present.

At the outset, I agree with the majority’s statement of settled law that if defendant was represented by counsel during the initial questioning in 2003 then the subsequent interrogation in 2006 without his attorney being present was in violation of his rights (see People v Arthur, 22 NY2d 325 [1968]; People v West, 81 NY2d 370 [1993]). There is no dispute that defendant was represented by counsel when he was questioned on a homicide in 2003. There is, however, some dispute as to whether at the time of the first statement he was represented on the robbery to which he had already pleaded guilty, on the murder which was under investigation, or both. Relying on People v Kinchen (60 NY2d 772 [1983]), the majority concludes that the record is inadequate to establish whether this defendant was in fact represented on the homicide by attorney Steven Kouray in 2003. I disagree and would hold that the record is more than adequate to establish that attorney Kouray represented defendant on the homicide in 2003.

The record clearly demonstrates the following. Defendant was a suspect in the Goodwin homicide as early as 2002 based on information the Schenectady police received from a third party. In other words, defendant was a suspect in the Goodwin homicide five years before he was actually convicted of it. More significantly, defendant was a suspect in that homicide nearly a year before his first written statement was taken.

The record contains two documents dated October 20, 2003 which support the position that defendant was being actively represented on the homicide. The date is significant because defendant had already entered a plea of guilty on the robbery charge. In the first document, entitled “Advice of Rights,” defendant acknowledges and signs several statements on a printed form containing the Miranda warnings. That the police advised defendant of his rights under Miranda v Arizona (384 US 436 [1966]) is telling. Simply put, there is no need to advise someone who is merely a witness of these rights. The fact that defendant was required to sign this form indicates he was in jeopardy and a suspect in the ongoing murder investigation.

In addition, on that date, defendant, after being advised of his rights under Miranda, agreed to be questioned concerning the murder expecting that it might be helpful to his sentence on the robbery. Defendant simultaneously signed a statement which began as follows:

“I Sam[ue]l McLean being duly sworn, deposes and says: Im in the Schenectady County District Attorneys Office with my attorney Steven Kouray. Mr Sims you have read my rights to me and I understand them and Im willing to give you this statement. Mr Sims we will be talking about what I know of a murder that happened back on January 27th of 2002.”

The record also contains the transcript of Detective Sims’ testimony at the 2006 Huntley hearing. A portion of the detective’s testimony makes reference to an exchange between the detective and defendant after the Miranda warnings were administered on October 20, 2003. During the direct examination of Detective Sims, he was asked, “After the defendant acknowledged that he understood the warnings as you read them to him from this form, what happened next?” In response, Detective Sims stated: “The Miranda warning was completed. We now discussed what he had witnessed or if he had participated in the homicide of Leonder Goodwin and we talked at length about the incident” (emphasis added).

At the Huntley hearing, Detective Sims was also asked about defendant’s interaction with his attorney (Kouray). The detective testified that they conferred, read documents together and that defendant constantly consulted with Mr. Kouray during the interview.

Accordingly, not only do the foregoing documents establish that defendant was a suspect in the Goodwin homicide, they clearly illustrate attorney Steven Kouray’s presence and that defendant was represented by him in the homicide investigation independent of the robbery case to which he had already entered a guilty plea. Since defendant was represented by counsel in the murder case when he gave the 2003 statements, the subsequent statement in 2006, made without counsel present, should have been suppressed (see People v Arthur, supra).

The majority, citing People v Kinchen, posits that the record before this Court is inadequate to determine whether defendant was represented on the homicide and points to the fact that “right to counsel” was never raised at the trial level. In Kinchen, the defendant gave a statement after receiving Miranda warnings which was later challenged. This Court held that although the defendant had an open warrant, there was no evidence that the police knew of the warrant before taking the statement and no evidence that the police knew if he was represented by counsel or had an open case.

Here, by contrast (and given the foregoing), the record is so detailed that it clearly contains evidence that the police knew that defendant was represented by counsel on the Goodwin homicide as the same detective was present at both interrogations. Thus, the majority’s conclusion that this record is “inadequate” on the question of legal representation is plainly inconsistent with settled case law. Stated differently, in a case where there is an adequate record on the question of legal representation (i.e., the right to counsel attached), as here, this Court’s jurisprudence provides that a claimed deprivation of said right may be raised on appeal, notwithstanding that the claim was not preserved at the suppression hearing or before the trial court.

Based on the foregoing, defendant’s conviction and sentence should be reversed and the matter remitted to County Court for further proceedings.

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

Order affirmed.

      . Defendant pleaded guilty to robbery on August 5, 2003. On October 20, 2003, defendant met with the investigating detective on the Goodwin homicide (Detective Jack Sims) at the Schenectady County District Attorney’s Office, and with his attorney (Steven Kouray) present gave a written statement concerning the homicide. Defendant met with the same parties a second time on October 21, 2003. On June 4, 2004, defendant was sentenced for the stated robbery.

      . Defendant, while incarcerated at Great Meadow Correctional Facility, met with Detective Sims and Detective Michael Brown on December 11, 2006. At this time, he gave another written statement on the Goodwin homicide.

      . The “Advice of Rights” form contained in the record states:
      “Before we ask you any questions, you must understand your rights. • You have the right to remain silent. • Anything you say can he used against you in court. • You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during any questioning. • If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish, at no charge to you.

        • If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time until you talk to a lawyer. • Do you understand what I have just said to you?”


author: Smith, J. Ciparick, J. (dissenting).

text:
    [931 NE2d 76, 905 NYS2d 107]
    The People of the State of New York ex rel. Joseph II., Respondent, v Superintendent of Southport Correctional Facility et al., Appellants. In the Matter of State of New York, Appellant, v Humberto G., Respondent.
    Argued April 28, 2010;
    decided June 15, 2010

      POINTS OF COUNSEL

      Andrew M. Cuomo, Attorney General, Albany (Andrea Oser, Barbara D. Underwood and Robert C. Weisz of counsel), for appellants in the first and second above-entitled proceedings.
    Because respondent was admitted to an Office of Mental Health hospital under Mental Hygiene Law article 9 upon his release from prison, he is a “detained sex offender,” notwithstanding his subsequent return to prison on a basis now known to be unlawful. (State of N.Y. ex rel. Harkavy v Consilvio, 8 NY3d 645; Matter of Albano v Kirby, 36 NY2d 526; Matter of State of New York v Millard, 19 Misc 3d 283; People ex rel. David NN. v Hogan, 53 AD3d 841; State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607; Matter of State of New York v Blair, 69 AD3d 15; Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745; Post v 120 E. End Ave. Corp., 62 NY2d 19; Matter of State of New York v F.E., 64 AD3d 497.)

      Mental Hygiene Legal Service, Third Judicial Department, Albany (David M. LeVine and Sheila E. Shea of counsel), for respondent in the first above-entitled proceeding.
    I. A person must still be in custody in order to qualify as a detained sex offender. (State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607; Earley v Murray, 451 F3d 71, 462 F3d 147, cert denied sub nom. Burhlre v Earley, 551 US 1159; Vitek v Jones, 445 US 480; State of N.Y. ex rel. Harkavy v Consilvio, 8 NY3d 645; People ex rel. David NN. v Hogan, 53 AD3d 841, 11 NY3d 708; People v Ortega, 69 NY2d 763.) II. The question of whether an unlawful confinement can supply the predicate for a Mental Hygiene Law article 10 commitment may be academic. (Matter of Larry TT, 68 AD3d 1229.) III. Should the State of New York’s Mental Hygiene Law article 10 application be reinstated, Joseph II. must be afforded a hearing with respect to whether his admission to an Office of Mental Health facility was pursuant to the standards of Mental Hygiene Law § 9.27. (Matter of State of New York v Blair, 69 AD3d 15; Matter of Coates, 9 NY2d 242; Bailey v Pataki, 636 F Supp 2d 288; Vitek v Jones, 445 US 480; State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607; Baxstrom v Herold, 383 US 107; State of N.Y. ex rel. Harkavy v Consilvio, 8 NY3d 645; Matter of State of New York v Randy M., 57 AD3d 1157, 11 NY3d 921; Matter of State of New York v F.E., 64 AD3d 497; Matter of State of New York v Robinson, 21 Misc 3d 1120 [A], 2008 NY Slip Op 52111[U].) IV The stay of Joseph II.’s release was improperly issued and continued. (Lachance v Erickson, 522 US 262; Fuentes v Shevin, 407 US 67; Mullane v Central

      Hanover Bank & Trust Co., 339 US 306; Matter of Aho, 39 NY2d 241; People ex rel. David NN. v Hogan, 53 AD3d 841, 11 NY3d 708; Earley v Murray, 451 F3d 71, 462 F3d 147, cert denied sub nom. Burhlre v Earley, 551 US 1159; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; Matter of Murray v Goord, 1 NY3d 29; State of New York v Myers, 22 Misc 3d 809; Matter of Douglas Z. [Harlem Val. Psychiatric Ctr.], 175 AD2d 450.)

      Mental Hygiene Legal Service, Second Judicial Department, Mineola (Rachael E. Seevers, Sidney Hirschfeld and Dennis B. Feld of counsel), for respondent in the second above-entitled proceeding.
    I. The explicit language of the provisions of Mental Hygiene Law article 10 makes clear that legal custody is a required predicate for any article 10 petition, including those brought pursuant to Mental Hygiene Law § 10.03 (g) (5). (People ex rel. David NN. v Hogan, 53 AD3d 841, 11 NY3d 708; Matter of State of New York v Randy M., 57 AD3d 1157, 11 NY3d 921; People ex rel. Joseph II. v Superintendent of Southport Correctional Facility, 59 AD3d 921, 13 NY3d 704; Matter of State of New York v F.E., 64 AD3d 497; Matter of State of New York v Robinson, 21 Misc 3d 1120[A], 2008 NY Slip Op 52111[U]; Project Release v Prevost, 722 F2d 960; Vitek v Jones, 445 US 480; Matter of State of New York v Millard, 19 Misc 3d 283; Morrissey v Brewer, 408 US 471; Earley v Murray, 451 F3d 71.) II. The Appellate Division’s decision in Matter of State of New York v Humberto G. (65 AD3d 690 [2009]) does not conflict with this Court’s decision in State of N.Y. ex rel. Harkavy v Consilvio (8 NY3d 645 [2007]). (Matter of State of New York v Randy M., 11 NY3d 921; Earley v Murray, 451 F3d 71; Matter of State of New York v Blair, 69 AD3d 15.) III. To the extent that any interpretation of the provisions of Mental Hygiene Law article 10 is required, such provisions should be construed narrowly. (Blanco v American Tel. & Tel. Co., 90 NY2d 757; Scott v Massachusetts Mut. Life Ins. Co., 86 NY2d 429; Matter of Smith [Great Am. Ins. Co.], 29 NY2d 116; Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Kansas v Hendricks, 521 US 346.) IV. Even if, arguendo, Mental Hygiene Law § 10.03 (g) (5) may be read as not requiring present and legal custody, this provision was directed to encompass prior involuntary admissions to an Office of Mental Hygiene facility, and extending it to include voluntary patients such as the respondent would be against public policy. (State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607; State of N.Y. ex rel. Harkavy v Consilvio, 8 NY3d 645; Matter of Pilgrim Psychiatric Ctr. [Christian F.], 197 AD2d

      204; People ex rel. Joseph II. v Superintendent of Southport Correctional Facility, 59 AD3d 921, 13 NY3d 704.)
   OPINION OF THE COURT

Smith, J.

Article 10 of the Mental Hygiene Law, enacted in 2007, provides that certain imprisoned sex offenders may be transferred to mental hospitals, rather than being released, when their prison terms expire. The statute raises important questions concerning the procedural and substantive rights of the prisoners to whom it applies, but those questions are not before us in this case. We have here the narrower issue of whether the statute applies to a particular class of prisoners: those who were incarcerated for violating the conditions of a term of postrelease supervision (PRS) that was improperly added to their sentences by the Department of Correctional Services (DOCS) without court authorization. We hold that these prisoners are within the coverage of the statute, which we read as applying to offenders actually imprisoned, even if the procedure that led to their imprisonment was flawed.

I

Both of these cases involve men convicted of serious sex crimes—assaults of vulnerable strangers on the street. Joseph II. assaulted a child, Humberto G. a developmentally disabled adult. Both were sentenced to imprisonment. Both were required by statute to be sentenced also to a term of PRS (see Penal Law § 70.06 [6]; § 70.45). However, as happened in a number of cases before our decisions in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 [2008]) and People v Sparber (10 NY3d 457 [2008]), the sentencing court failed to impose the PRS term. DOCS nevertheless included PRS in its record of each man’s sentence—a practice we decided in Garner was unlawful.

Joseph completed his prison sentence in August 2006, and Humberto completed his in January 2007. Both men began their improperly-imposed PRS terms—not in the community, but in a psychiatric hospital. Mental Hygiene Law article 10 had not then been enacted, but Joseph was involuntarily committed to a hospital under article 9 of the Mental Hygiene Law (Mental Hygiene Law § 9.27), and Humberto committed himself voluntarily, also under article 9 (Mental Hygiene Law § 9.13). Both, while in the hospital, violated the terms of their PRS—Joseph by trying to escape, Humberto by assaulting a fellow patient— and both were returned to prison.

Article 10, which created a new procedure for the confinement of sex offenders on the expiration of their prison terms, became effective on April 13, 2007. At first the State took no action under the new statute in either Joseph’s or Humberto’s case, presumably because there seemed no imminent prospect that either would be released. But our April 2008 decision in Garner changed that, making clear that the PRS terms that had allowed the State to reincarcerate Joseph and Humberto were unlawful. Correction Law § 601-d and Penal Law § 70.85, enacted in response to Garner and Sparber and effective June 30, 2008, effectively give prosecutors in such cases a choice either to seek resentencing or to forgo PRS, and in the autumn of 2008 the prosecutors in Joseph’s and Humberto’s cases chose the latter option. Faced with the prospect that the men would soon be freed, the State began article 10 proceedings, asking that each man be found “a sex offender requiring civil management” and be held in custody past his scheduled release date.

Joseph and Humberto contended that article 10 did not apply to them. They asserted that they were not “detained sex offenders” within the meaning of that article, because their PRS terms, and thus their imprisonment resulting from violations of PRS conditions, were unlawful. Both succeeded below, using different procedural vehicles. Joseph, after his release from custody was stayed under article 10, began a habeas corpus proceeding, which Supreme Court dismissed; the Appellate Division reversed and granted the writ (People ex rel. Joseph II. v Superintendent of Southport Correctional Facility, 59 AD3d 921 [3d Dept 2009]). Humberto made a motion to dismiss the article 10 proceeding against him, which Supreme Court granted; the Appellate Division affirmed (Matter of State of New York v Humberto G., 65 AD3d 690 [2d Dept 2009]). We granted leave to appeal in both cases, and we now reverse.

II

As these cases illustrate, the State’s efforts to confine certain sex offenders whose prison terms have expired predate the enactment of Mental Hygiene Law article 10. The State formerly proceeded in a number of cases, as it did in Joseph’s, under Mental Hygiene Law article 9, which contains provisions for the involuntary admission to mental hospitals of people who are mentally ill and in need of involuntary care and treatment (see Mental Hygiene Law §§ 9.27, 9.31). We held, however, in State of N.Y. ex rel. Harkavy v Consilvio (7 NY3d 607 [2006] [Harkavy I]) that the State was required to proceed in such cases under Correction Law § 402, a statute applicable to prison inmates believed to be mentally ill, rather than the more general provisions of article 9.

Evidently believing that section 402 procedures were inadequate to protect the public, the Legislature responded to Harkavy I by enacting article 10, a statute specifically designed to deal with sex offenders who are completing their prison terms. The statute sets out procedures for determining whether a “detained sex offender” is a “sex offender requiring civil management”—a term defined as “a detained sex offender who suffers from a mental abnormality” (Mental Hygiene Law § 10.03 [q]). A subcategory of “sex offender requiring civil management” is a “dangerous sex offender requiring confinement”—i.e., one whose mental abnormality involves “such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03 [e]; see Mental Hygiene Law §§ 10.05-10.08; § 10.03 [q]). In State of N.Y. ex rel. Harkavy v Consilvio (8 NY3d 645 [2007] [Harkavy II]), we decided that, as to the prisoners involved in Harkavy I, the new statute had superseded Correction Law § 402 and that future proceedings concerning those prisoners should be held under article 10.

Under article 10, a prisoner can be found to be a “sex offender requiring civil management” (and thus perhaps a “dangerous sex offender requiring confinement”) only if he or she is a “detained sex offender” (see Mental Hygiene Law § 10.03 [q] [“ ‘Sex offender requiring civil management’ means a detained sex offender who . . .”]). The main issue in these cases is whether Joseph and Humberto were detained sex offenders when the State began proceedings against them under article 10.

Mental Hygiene Law § 10.03 (g) defines “detained sex offender.” The part of the definition that is relevant to this case says:

“(g) ‘Detained sex offender’ means a person who is in the care, custody, control, or supervision of an agency with jurisdiction, with respect to a sex offense or designated felony, in that the person is . . . “(5) A person convicted of a sex offense who is, or was at any time after September first, two thousand five, a patient in a hospital operated by the office of mental health, and who was admitted directly to such facility pursuant to article nine of this title or section four hundred two of the correction law upon release or conditional release from a correctional facility . . . .”

Joseph and Humberto are clearly persons of the kind described in subsection (5). Both were patients in a hospital operated by the Office of Mental Health after September 1, 2005, and both were admitted to the hospital under Mental Hygiene Law article 9 “directly . . . upon release or conditional release from a correctional facility”—Joseph involuntarily and Humberto voluntarily. Humberto argues that subsection (5) applies only to involuntary patients, but the plain text of the statute contradicts that argument.

On its face, the introductory language of section 10.03 (g) also fits Joseph and Humberto. It is beyond dispute that, when the article 10 proceedings began, they were in fact in DOCS’s custody, and DOCS can be an “agency with jurisdiction” (see Mental Hygiene Law § 10.03 [a] [“ ‘(a)gency with jurisdiction’ . . . can include the department of correctional services”]). Nor can it be doubted that each man was confined “with respect to a sex offense.” Joseph and Humberto argue, however, that “custody” must mean lawful custody and that since their confinement was unlawful under Garner, the definition of “detained sex offender” cannot apply to them. We reject this argument.

No doubt it is often reasonable to read “custody” as implying “lawful custody.” Here, however, the statute is best read as making no distinction between those properly and improperly confined. To see why, it is helpful to remember that article 10, which applies only to “detained” sex offenders, is the result of our decision in Harkavy I, which drew a distinction between prison inmates and other people. The sex offenders on whose behalf Harkavy I was brought argued that Mental Hygiene Law article 9, which generally governs the commitment of mentally ill people to hospitals, could not be applied to them because they were prisoners, and therefore subject to the more specific provisions of Correction Law § 402 for commitment of “any person undergoing a sentence of imprisonment” (Correction Law § 402 [1]). Accepting that argument, we held that “the Legislature intended the procedures of Correction Law § 402 to be used to evaluate for commitment all imprisoned persons” (7 NY3d at 613 [emphasis added]). The prisoners in Harkavy I sought this result, apparently because they preferred section 402 procedures to those used under article 9; we referred in Harkavy I to section 402’s “attendant procedural requirements including court supervision, pretransfer notice and an opportunity to be heard within a reasonable period of time prior to the inmate’s proposed release date” (id. at 614).

If Joseph and Humberto had been involved in the Harkavy I litigation, they would likely have argued that they were persons “undergoing a sentence of imprisonment” within the meaning of section 402, despite the fact that their “imprisonment” violated the law. And that argument would have been plainly correct. The point of Harkavy I was that the Legislature enacted certain procedures specifically designed for the transfer of inmates from prisons to mental hospitals. There is no reason why people whose confinement violated the law should not have been treated the same way as other inmates. And there is no reason to suppose that the Legislature intended to treat them differently when it enacted article 10, which provided a new way of dealing with the prisoners affected by the Harkavy I decision.

It is true that the enactment of Mental Hygiene Law article 10 has made special procedures applicable to those in prison less desirable from the prisoners’ point of view. Now that the alternative to an article 9 proceeding is an article 10 proceeding, Joseph and Humberto are arguing, in substance, that the State must proceed against them under article 9 if at all—thus seeking to come within the statute that the prisoners in Harkavy I sought to escape. This change in the preference of prisoners seems to result, at least in part, from the unattractive prospect of being sent to a “secure” mental health facility—the consequence of being found a “dangerous sex offender requiring confinement” under article 10. But of course it is the Legislature’s preference, not the prisoners’, that controls. Just as we held in Harkavy I that the Legislature intended a distinction between prisoners and other people alleged to be mentally ill, we now conclude that the Legislature intended to draw a similar line between prisoners and non-prisoners when it enacted article 10. The legality of the prisoners’ custody is irrelevant in both situations.

There is no injustice in holding prisoners situated as Joseph and Humberto are to be within article 10’s scope. The point of the prisoner/non-prisoner distinction we recognized in Harkavy I is not that one group should be treated more or less favorably than the other, but that different situations may call for different procedures. Indeed, there is no apparent reason why the Legislature had to limit article 10 to “detained” sex offenders. It could equally well have subjected all people who had committed sex offenses and were thought to be mentally ill—including those living in the community—to the procedures described in article 10. It chose not to do so, perhaps because it thought article 9 procedures adequate to deal with sex offenders who are not detained, or perhaps because it thought that those who are detained present a more serious threat to public safety.

We do not decide here whether there are any valid constitutional objections to article 10. But assuming, as we must for present purposes, that it can be validly applied to lawfully detained prisoners, it can be applied with equal validity to those whose imprisonment resulted from a procedural error. We hold that such prisoners are within the statute’s coverage.

Ill

Our conclusion that Joseph and Humberto are “detained sex offenders” subject to article 10 disposes of the only issue raised in the Humberto G. case. In the Joseph II. case, one other issue requires brief attention.

Joseph argues that he was entitled to notice and an opportunity to be heard before the issuance of an order under Mental Hygiene Law § 10.06 (h) staying his release from DOCS’s custody. The State argues, and Joseph does not dispute, that this claim is now moot, since Joseph was released after the Appellate Division decision in his favor. Joseph suggests, however, that we should exercise our discretion to decide a moot controversy where the issue presented is significant, likely to recur, and, because it arises in situations of relatively brief duration, apt to evade review (see Matter of Hearst Corp. v Clyne, 50 NY2d 707 [1980]).

The State does not challenge Joseph’s assertion that the issue he raises is significant and likely to recur; it does dispute his claim that it will evade review. Without resolving that dispute, we decline to address the issue here. It is barely alluded to in Joseph’s habeas corpus petition; it was not discussed by either court below; and the State, as appellant in this Court, has not briefed or argued the merits of the question. If this issue is one that should be addressed by means of the mootness exception, it can be addressed in some other case.

Accordingly, in People ex rel. Joseph II. v Superintendent of Southport Correctional Facility et al., the order of the Appellate Division should be reversed, without costs, and the petition dismissed. In Matter of State of New York v Humberto G., the order of the Appellate Division should be reversed, without costs, and Humberto G.’s motion to dismiss the article 10 proceeding denied.

Ciparick, J. (dissenting).

Because I believe that a prisoner must be lawfully in custody in order to qualify as a “detained sex offender” as that term is defined in Mental Hygiene Law article 10, I dissent.

A civil management proceeding under article 10 of the Mental Hygiene Law is commenced when an “agency with jurisdiction” notifies the Attorney General and the Commissioner of the Office of Mental Health that a “detained sex offender” is nearing an anticipated release date (Mental Hygiene Law § 10.05 [b]). An “agency with jurisdiction” is an agency “which, during the period in question, would be the agency responsible for supervising or releasing” the “detained sex offender” (Mental Hygiene Law § 10.03 [a]). As relevant here, article 10, which became effective in April 2007, defines the term “detained sex offender” to mean:

“a person who is in the care, custody, control, or supervision of an agency with jurisdiction ... in that the person is . . .
“[a] person who stands convicted of a sex offense . . . and is currently serving a sentence for, or subject to supervision by the division of parole, whether on parole or on post-release supervision, for such offense or for a related offense; . . .
“[or a] person convicted of a sex offense who is, or was at any time after September first, two thousand five, a patient in a hospital operated by the office of mental health, and who was admitted directly to such facility pursuant to article nine of this title or section four hundred two of the correction law upon release or conditional release from a correctional facility, provided that the provisions of this article shall not be deemed to shorten or lengthen the time for which such person may be held pursuant to such article or section respectively” (Mental Hygiene Law § 10.03 [g] [1], [5]).

From these legislative pronouncements, the majority draws several conclusions with which I agree. First, I believe the majority correctly concludes that the Legislature limited the scope of article 10 to sex offenders who are actually and presently in the custody or care of the relevant agency with jurisdiction (see majority op at 135); I also agree that it is “often reasonable to read ‘custody’ as implying ‘lawful custody’ ” (id. at 133; see Mental Hygiene Law § 10.03 [g]). I part company with the majority, however, when it concludes that “[t]he legality of [a] prisoner’s] custody is irrelevant” (majority op at 134) in ascertaining whether he or she is a “detained sex offender.”

In State of N.Y. ex rel. Harkavy v Consilvio (7 NY3d 607 [2006] [Harkavy I]), we determined that the proper procedure for involuntary commitment of an inmate was Correction Law § 402 rather than article 9 of the Mental Hygiene Law (see id. at 614). We recognized in State of N.Y. ex rel. Harkavy v Consilvio (8 NY3d 645 [2007] [Harkavy II]), decided after the legislative enactment of article 10 of the Mental Hygiene Law, that persons similarly situated to the Harkavy I petitioners—sex offenders improperly transferred to Office of Mental Health facilities directly from Department of Correctional Services (DOCS) facilities pursuant to article 9—had been specifically designated for inclusion within the new article 10, thus making that new procedure the proper vehicle to involuntarily commit a sex offender nearing the end of his or her prison sentence (see id. at 652). We did not contemplate, at that time, whether the DOCS detention was or could be illegal.

The following year, we concluded in People v Sparber (10 NY3d 457, 469-470 [2008]) and Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358, 362 [2008]) that a term of postrelease supervision must be judicially pronounced in order to be valid and that it could not be administratively imposed by DOCS. Moreover, recently, we reaffirmed the concept that “the administrative imposition by DOCS of any additional penalty other than that issued by the sentencing court is a nullity” (People v Williams, 14 NY3d 198, 218 [2010], citing Garner, 10 NY3d at 362; see also Earley v Murray, 451 F3d 71, 76 [2d Cir 2006], reh denied 462 F3d 147 [2006], cert denied sub nom. Burhlre v Earley, 551 US 1159 [2007]).

In both of the cases presently before us, DOCS impermissibly imposed PRS. Accordingly, Joseph II. and Humberto G. were in DOCS custody for violating unlawfully imposed PRS conditions at the time the Attorney General commenced

article 10 proceedings against them. Yet the majority concludes that the status of the incarceration of both is unimportant. I disagree. An invalid term of PRS and a subsequent violation should not be permitted to serve as the basis for further proceedings under article 10, especially because such proceedings may result in a significant curtailment of liberty (see generally Kansas v Hendricks, 521 US 346, 356-357 [1997] [recognizing liberty interest in remaining free from restraint, but upholding a state sex offender civil commitment statute because it complied with due process requirements]).

The majority’s argument to the contrary is not convincing. The majority explains that, in Harkavy I, we recognized a legislative distinction between imprisoned persons and non-imprisoned persons; it also concludes that “the Legislature intended to draw a similar line between prisoners and non-prisoners when it enacted article 10” (majority op at 134). While that conclusion is accurate, it is irrelevant. Joseph II. and Humberto G.’s administratively imposed PRS terms are a nullity and, thus, their incarceration as a result of a “violation” of an unlawfully imposed term of PRS was likewise illegal. In short, these two prisoners are unlawfully in DOCS custody and thus DOCS may not be considered “an agency with jurisdiction” as contemplated by article 10.

That the majority views the legality of the custody “irrelevant” is troubling; such a result encourages and rewards DOCS errors. For instance, if a DOCS inmate “slips through the cracks” or DOCS “miscalculates” a sentence to extend beyond the actually-imposed sentence, that illegal detention and custody could, under the majority’s rationale, serve as the basis for an article 10 proceeding. That result would be untenable. Accordingly, I would hold that neither prisoner qualifies as a “detained sex offender” and, in both cases, would affirm the orders of the Appellate Division.

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

In each case: Order reversed, etc.

       As the majority notes, in both cases, the District Attorney declined to seek resentencing pursuant to Correction Law § 601-d to include a term of PRS.