author: Read, J. Smith, J. Chief Judge Lippman

text:
    [21 NE3d 1012, 997 NYS2d 351]
    The People of the State of New York, Respondent, v Daniel A. Ludwig, Appellant.
    Argued September 17, 2014;
    decided October 23, 2014

      POINTS OF COUNSEL

      Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), for appellant.
    I. It was reversible error to permit the prosecutor to elicit, over repeated objections, prejudicial testimony from two witnesses about prior consistent statements of the complainant which bolstered the complainant’s credibility. (People v Fisher, 18 NY3d 964; People v Rosario, 17 NY3d 501; People v McClean, 69 NY2d 426; People v McDaniel, 81 NY2d 10; People v Concepcion, 17 NY3d 192; People v LaFontaine, 92 NY2d 470; People v Resek, 3 NY3d 385; People v Davis,
      44 NY2d 269; People v Katz, 209 NY 311.) II. The court below improperly precluded Daniel A. Ludwig from introducing testimony from the complainant’s grandmother that the complainant had stated that she would only tell what her mother told her to say. (People v Carroll, 95 NY2d 375; People v Knight, 80 NY2d 845; People v Wise, 46 NY2d 321; People v Hudy, 73 NY2d 40; People v Dawson, 50 NY2d 311; People v Cade, 73 NY2d 904; People v Concepcion, 175 AD2d 324; People v Carter, 227 AD2d 661; People v Sales, 197 AD2d 360.)

      Sandra Doorley, District Attorney, Rochester (.Matthew Dun-ham and Geoffrey Kaeuper of counsel), for respondent.
    I. The trial court properly admitted testimony from the complainant’s mother and another one of her children regarding the complainant’s disclosure of the sexual abuse. (People v Huertas, 75 NY2d 487; People v Smith, 22 NY3d 462; People v Kello, 96 NY2d 740; People v Crimmins, 36 NY2d 230; People v Ficarrota, 91 NY2d 244; Matter of Janiece B. [James D.B.], 93 AD3d 1335.) II. The court properly precluded as hearsay testimony from the complainant’s grandmother about an unrelated statement allegedly made by the complainant. (People v Pavao, 59 NY2d 282; People v Schwartzman, 24 NY2d 241; People v Inniss, 83 NY2d 653; People v Carroll, 95 NY2d 375; People v Knight, 80 NY2d 845; People v Cade, 73 NY2d 904; People v Wise, 46 NY2d 321.)
   OPINION OF THE COURT

Read, J.

In this child sexual abuse case, County Court permitted the People to elicit testimony about complainant’s prior consistent statements disclosing the abuse, and precluded defendant’s mother from testifying about a prior allegedly inconsistent statement made by complainant. We conclude that the trial judge did not abuse his discretion when he made these evidentiary rulings. The challenged testimony was admissible for the nonhearsay purpose of explaining to the jury how and when the sexual abuse came to light, resulting in an investigation and defendant’s eventual arrest; and defendant’s mother’s proffered testimony was inadmissible hearsay not subject to any exception.

I

Complainant, who was born in 1998, resided with her father, defendant Daniel A. Ludwig, and her mother until April 25, 2008, when defendant moved out of the marital home and into the basement of his mother’s house. Complainant, who was in third grade when her parents separated, lived with her mother, but she and her younger brother and sister visited their father on weekends. Defendant and complainant’s younger brother slept in the basement, while complainant and her younger sister slept upstairs. The basement was roughly divided into a laundry and bathroom on one side, and two beds (one for defendant, the other for complainant’s younger brother), two televisions and a computer on the other side.

According to complainant, defendant sexually abused her when she was in third and fourth grades. The abuse always took place in defendant’s basement living quarters. The first time, she had been playing upstairs with her younger sister when defendant called her down to the basement. Defendant was only wearing underwear, and complainant, seeing this, “got scared” and “tried to get back upstairs.” But defendant called her back, and she returned “to see what he wanted.” Defendant stood up, pulled down his underwear and told complainant to kneel, “grabbed [her] hair” and directed her to suck his penis, which she did for “at least a minute or two minutes.” After such incidents, she “would usually go upstairs and just try not to think about it and just play” with her siblings.

Complainant recalled another specific occasion when defendant sexually abused her. She was watching an episode of the “Wizards of Waverly Place,” a children’s program broadcast on ABC’s Disney Channel, in her bedroom; the plot involved a tutor and the color green. Defendant summoned complainant down to the basement and “did the same thing that the first time it happened.” This incident took place during complainant’s school vacation period between fourth and fifth grades, the summer of 2009. On another occasion soon afterwards, complainant was already in the basement when defendant went into the bathroom and called her to follow him. When defendant pulled his pants down, complainant objected “Why do I need to do it?” and defendant backed off. This was the last time he attempted to sexually abuse her.

Complainant kept the sexual abuse a secret because “[she] was scared” and “afraid” that defendant “would do something to [her]” if she confided in anyone. But during the summer after the abuse ceased, on August 3, 2010, complainant let the secret slip. That day, she and her half brother, who is three years older, were playing in the backyard of their mother’s home. Complainant remarked to her half brother that “the backyard smelled like something weird.” He asked “Like what?” and complainant “kind of said what happened with [her] dad.” Her half brother went “inside to the living room” and repeated complainant’s disclosure to their half sister, who informed their mother. Complainant acknowledged that when her mother asked her, she confirmed the sexual abuse; this was the “only time” she ever addressed this topic with her mother.

In October 2010, defendant was indicted on one count of predatory sexual assault against a child (Penal Law § 130.96); specifically, that between April 25, 2008 and June 30, 2009, defendant, being 18 years of age or more, committed the crime of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [b]) in that he engaged in two or more acts of sexual conduct, which included at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with complainant, who was less than 13 years old. At defendant’s jury trial in County Court in August 2011, she testified on direct examination as narrated above.

On cross-examination, the defense attorney and complainant engaged in the following colloquy:

“[DEFENSE ATTORNEY] Do you remember having a conversation with your Aunt [P] about whether your mother was pregnant?
“[COMPLAINANT] No.
“[DEFENSE ATTORNEY] No? Do you remember telling your Aunt [P] that your mother wasn’t pregnant?
“[COMPLAINANT] No.
“[DEFENSE ATTORNEY] Do you remember telling your Aunt [E] that you only tell what your mother tells you to say?
“[COMPLAINANT] No.”

On redirect examination, the prosecutor tried to coax complainant into elaborating on her testimony that the backyard smelled “weird” by asking if she could “remember” or “describe” the smell. Complainant demurred. When the prosecutor then asked if the smell “remind[ed]” her of anything, complainant responded that “[t]he smell only reminded me of what happened with my dad.”

After complainant’s testimony, the People called her half brother to the witness stand. He recounted that in August 2010, while playing with complainant in the backyard of their mother’s home, she remarked that “it smelled like penis in the backyard,” and he “asked her how she knew.” When the prosecutor asked him for complainant’s reply, her half brother said that complainant “hesitated a little.” At this point, before the half brother could finish his answer, the defense attorney jumped in and objected, and the trial judge excused the jury and the witness from the courtroom.

The defense attorney argued that what complainant may have told her half brother did not fall within the prompt outcry exception to the hearsay rule because the most recent alleged incident of abuse had taken place 14 months before the backyard conversation. The prosecutor responded that the testimony went to “the state of mind of the witness [and] how he reacted to [the disclosure], what he did when he did it,” not to prove the truth of the matter.

The trial judge agreed with the People that the half brother’s testimony was not being elicited for its truth, and offered to give a limiting instruction to inform the jury that the testimony was only being introduced “for the fact that upon hearing it he then did something.” The judge added that he thought he had already heard what that something was — i.e., that the half brother “reported [complainant’s disclosure] to his mother.” The defense attorney protested that

“the fact that the backyard smelled like penis . . . [t]hat’s not what I wanted to be heard on. [Complainant’s half brother] is going on to discuss any further conversation that he had with [complainant] that she was — you know, she was hesitant. She was — God only knows what. If he wants to describe observations, that’s one thing. But the content of her communication with him is inadmissible hearsay.”

The defense attorney asked the trial judge not to instruct the jury as to why the testimony was being offered because there was no reason to “highlight the issue.” The judge replied that his proposed instruction was

“not about highlighting any issues; it’s about giving [the jury] an instruction that the question is permissible, but not for their consideration as to whether, in fact, [the backyard] did smell like it back there, but, rather, the anticipatory question as to after [the complainant] having said that[,] what he did.”

After the jury returned to the courtroom, the trial judge issued such an instruction.

Complainant’s half brother then related, over repeated objections, further conversation in the backyard with complainant, and later with their mother; to wit, that when he asked complainant “how she knew what it smelled like,” she told him that “she sucked a penis”; that he badgered her to tell him whom she had done this with, and complainant finally divulged “My dad”; that when he then questioned whether complainant was “kidding” or “joking,” she replied that she was not; that he “told [complainant] to tell [their] mom, but she wouldn’t”; and that he finally repeated complainant’s comments to their mother.

The prosecutor then called complainant’s mother. She testified that she was in the kitchen of her home on August 3, 2010 when her son, followed by complainant, appeared and announced that “[complainant] needed to tell [her] something”; and that complainant stood with “her fist in her mouth” and “kept shaking her head . . .no, but with her hand in her mouth,” as though she might have “hurt her hand,” while her half brother kept urging her “to tell mom.” Eventually, complainant’s half brother revealed that complainant had “said the backyard smelled like penis.” Complainant’s mother asked her daughter if she had said this, and complainant “shook her head yes.”

When the prosecutor questioned complainant’s mother about what her son told her next, the defense attorney again objected. The trial judge overruled the objection and complainant’s mother answered that her son said that complainant “had given [defendant] a blow job.” Over another objection, she testified that complainant responded affirmatively when she asked if this was true. Complainant’s mother “asked her at least one more time if it was all true. And [complainant] said ‘Yes.’ ” According to complainant’s mother, she never again mentioned the matter to her daughter.

After this revelation, complainant’s mother telephoned one of defendant’s sisters, whom she “look[ed] up to . . .in some way,” and a friend, and communicated what she had just learned. She did not report complainant’s allegation to the authorities, but her friend did. At about 2:00 a.m. the next morning, defendant called her, explaining that “he couldn’t sleep.” He denied sexually abusing complainant, and suggested that she “was just misconstruing the fact that she had caught him [masturbating] a few other times.”

The People also called Elizabeth Opp, employed by Monroe County as a child protective services caseworker, and Nicole Thomson, a sex abuse crisis intervention specialist at the Catholic Family Center in Rochester. They both testified about their interviews of complainant in August 2010, soon after the sexual abuse allegations surfaced. Opp and Thomson were not asked to repeat statements that complainant made to them during these interviews; rather, they described her demeanor when they brought up the allegations of oral sex.

According to Opp, when her conversation with complainant turned to this topic, complainant tilted her head down and became “very closed off, turning away . . . didn’t want to talk, didn’t want to engage anymore.” Thomson characterized complainant as “very hesitant” when the subject of the sexual abuse was broached, meaning “[s]he would lower her head. She would avoid eye contact. She would push back in her chair. She would try to . . . make more space between herself and me.” Thomson further testified that complainant exhibited symptoms consistent with post-traumatic stress disorder.

Thomson also met with defendant at his request. She “asked him if he could think of any reason why [complainant] would have made this up or any reason why [she] would have said these things that he said weren’t true.” Defendant again attributed complainant’s allegation to a misunderstanding, telling Thomson that “he sometimes masturbated in the shower when the kids were at the house and that if he had been masturbating in the bathroom and [complainant] came into the bathroom that he may not have stopped when she asked a question.”

Dr. Danielle Thomas-Taylor, a pediatrician with specialized training in evaluating children suspected of being abused, explained that an examination of complainant yielded no physical signs of sexual abuse, and why this was not unexpected given the nature of the allegations and the lapse of time. Stefan Perkowski, a social worker with expertise in child sexual abuse, gave expert testimony about child sexual abuse accommodation syndrome (CSAAS). According to Perkowski, CSAAS is generally accepted as valid within the community of child sexual abuse therapists, and accounts for why children delay reporting and try to block out details of the abuse. And finally, District Attorney Investigator Robert Siersma testified that he had watched an episode of the “Wizards of Waverly Place” titled “Tutor, My Tutor” where characters donned green costumes; the People introduced into evidence a business record from ABC to show that this particular episode had aired in the summer of 2009.

Defendant’s only witness was his mother. She testified generally about the frequency of complainant’s and her siblings’ weekend visits with defendant, and the activities that the family engaged in. Defendant’s mother also testified that complainant was a “[v]ery normal, typical grandchild,” who “did tell lies about some activities that she would be involved in,” such as whether she had completed assigned chores or homework. At one point, the defense attorney made an offer of proof that defendant’s mother had overheard complainant tell one of her aunts on Father’s Day weekend in 2011, two months before the trial, that “she only tells what her mother tells she can say.” The defense attorney took the position that since complainant on cross-examination had denied having this conversation, defendant was allowed to “impeach [complainant’s] credibility” with the testimony of his mother, who was “physically present and heard this child say these words.” The prosecutor objected on hearsay grounds, and the trial judge ruled that the testimony was inadmissible hearsay.

The jury convicted defendant as charged, and the trial judge subsequently sentenced him to an indeterminate term of imprisonment of from 16 years to life. On his subsequent appeal, defendant contended that he was denied a fair trial by the prosecutor’s references during opening argument to complainant’s prior consistent statements, and the testimony of five witnesses (complainant, her half brother, her mother, Opp and Thomson) who improperly bolstered complainant’s credibility by repeating the prior consistent statements; and that his mother should have been permitted to testify about the prior inconsistent statement that she claimed to have overheard complainant make.

The Appellate Division unanimously affirmed in a decision issued in March 2013 (104 AD3d 1162 [4th Dept 2013]). The court first noted that defendant’s improper bosltering claims were preserved only as to the testimony of complainant’s half brother and mother, and in any event, Opp and Thomson merely described complainant’s demeanor when they brought up her allegations of oral sexual abuse. The Appellate Division then concluded that the objected-to testimony, as well as complainant’s testimony, “did not constitute improper bolstering inasmuch as the evidence was not admitted for its truth [,] [but rather] to explain how the victim eventually disclosed the abuse and how the investigation started” (id. at 1163 [citations omitted]). Further, since the prior-consistent-statement testimony from the relevant witnesses was proper, defendant’s attorney was not ineffective for failing to object to it or to the prosecutor’s opening statement.

The court also rejected defendant’s claim that the trial judge improperly precluded his mother from testifying about complainant’s purported prior inconsistent statement. The Appellate Division observed that defendant failed to preserve any claim that this ruling denied him his right to present a defense, or that the testimony was admissible to establish that complainant had a reason to fabricate her allegations. And when the People objected to the testimony on hearsay grounds, the defense attorney failed to articulate any applicable exception to the hearsay rule. Finally, the Appellate Division declined to review this claim as a matter of discretion in the interest of justice, and rejected defendant’s remaining claims as either without merit or unpreserved.

On August 16, 2013, a Judge of this Court granted defendant permission to appeal (21 NY3d 1043 [2013]). We now affirm.

II

Prior Consistent Statements

As we observed in People v Smith (22 NY3d 462, 465 [2013]),

“[t]he term ‘bolstering’ is used to describe the presentation in evidence of a prior consistent statement — that is, a statement that a testifying witness has previously made out of court that is in substance the same as his or her in-court testimony.”

"While such statements are generally precluded by the hearsay rule absent an applicable exception, prior consistent statements are notably less prejudicial to the opposing party than other forms of hearsay, since by definition the maker of the statement has said the same thing in court as out of it, and so credibility can be tested through cross-examination (id. at 465-466). As a result, “in many cases, the admission of purely redundant hearsay creates no greater evil than waste of time” (id. at 466). Still, there exists a risk that a prior consistent statement “may, by simple force of repetition, give to a jury an exaggerated idea of the probative force of a party’s case” (id.).

Here, defendant contends that the trial judge countenanced improper bolstering when he permitted complainant’s half brother and mother to testify that complainant revealed to them on August 3, 2010 that she had performed oral sex on defendant. Of course, if complainant’s disclosure was offered for the truth of the matter asserted — that the abuse actually happened — her own testimony fell outside any hearsay exception (see People v McDaniel, 81 NY2d 10, 16 [1993]). Defendant did not object to complainant’s testimony, though. The hearsay that he complains about was, therefore, already admitted. Defendant’s real grievance is that other witnesses repeated the hearsay. But since defendant claimed that complainant had made up the allegations (by trial, he had abandoned the fantastic notion that she might have misperceived his behavior), the circumstances of her disclosure were relevant to her credibility.

In the challenged testimony, complainant’s half brother and mother did not recite any details of the sexual abuse to which complainant testified in court — indeed, they could not have done so because she supplied them with no information beyond a bare allegation. They did, however, describe complainant’s appearance: according to her half brother, complainant “hesitated” and, after telling him that she had performed oral sex, was reluctant to speak further; according to complainant’s mother, when pushed by her half brother to “tell mom what you just told me,” complainant stood mute with her fist in her mouth, causing her mother to think at first that she had injured her hand. Finally, the witnesses explained what actions complainant’s disclosure prompted them to take: the half brother pressed complainant to repeat the allegation to their mother, and, when she was unwilling, told their mother himself; complainant’s mother immediately shared the allegation with a trusted sister of defendant’s and a friend, which led to the investigation resulting in the charge against defendant.

New York courts have routinely recognized that “nonspecific testimony about [a] child-victim’s reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant’s arrest” (People v Rosario, 100 AD3d 660, 661 [2d Dept 2012]; see also People v Gregory, 78 AD3d 1246, 1246 [3d Dept 2010] [a police officer’s testimony about the victim’s comments did not “improperly bolster( ) the victim’s version of events (when) admitted not for its truth but for the narrow purpose of explaining an officer’s actions and the sequence of events in an investigation, and the testimony is accompanied by an appropriate limiting instruction”]). Here, the objected-to testimony fulfilled these legitimate nonhearsay purposes.

At trial, defendant argued that complainant was lying because otherwise she would have reported his alleged sexual misconduct right away, and he proposed a host of reasons why complainant (and/or her mother) might wrongfully accuse him of sexual abuse. As a result, the challenged testimony was necessary — not to show that defendant made complainant “suck his penis,” but to depict for the jury the circumstances attendant to the disclosure that triggered the investigation. This evidence was relevant to the jury’s assessment of complainant’s alleged motive to lie. As already noted, the witnesses did not recite prejudicial details of the alleged abuse; they merely stated that complainant claimed that she had been made to engage in oral sex with defendant.

My concurring colleague expresses puzzlement that we sanction the admission into evidence of complainant’s prior consistent statements here since we did not do so in People v Rosario (17 NY3d 501 [2011]) and its companion case, People v Parada, where, in his view, the “facts are substantially identical, in relevant ways” to those in this case (concurring op at 233). But in both cases, prior consistent statements were improperly introduced into evidence in the People’s direct case as prompt outcry exceptions to the hearsay rule; the statements at issue were not, and indeed could not have been, offered for the non-hearsay purpose relied upon by the People here.

The disputed prior consistent statement in Rosario was contained in a note that the complainant wrote and gave to her boyfriend about a year before she disclosed the sexual abuse to two police officers with whom she had become friendly through her participation in a police-sponsored program for teenagers. The note was thought to be destroyed or lost and was not presented to the prosecutor until the eve of the boyfriend’s testimony at trial, a year after the complainant reported the abuse to the police officers and two years after the note was alleged to have been written. In short, the People did not, and indeed, could not, claim that the admission of the note would serve the “nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant’s arrest” (Rosario, 100 AD3d at 661). The police officers to whom the complainant confided the sexual abuse testified at trial about the facts and circumstances of her disclosures to them without objection.

In Parada, the complainant disclosed the sexual abuse to a young cousin at a time when the abuse was continuing, and to an aunt, about two years after it ended. She swore both to secrecy, which they honored. About a month or so after the complainant’s conversation with her aunt, though, she revealed the abuse to her mother, who then contacted the police. We concluded that the disclosure to the cousin qualified as a prompt outcry, and that the disclosure to the aunt did not, but that its admission into evidence was harmless error. At trial, the complainant’s mother narrated the facts and circumstances of her daughter’s disclosure of the abuse to her, just as complainant’s mother did here. The defense attorney twice objected to this testimony, without stating any basis. The objections were overruled, and the defendant did not argue to us that the mother’s testimony was improperly admitted hearsay.

Prior Inconsistent Statement

Defendant’s mother was prepared to testify that she overheard complainant state that “she only tells what her mother tells she can say.” Complainant allegedly made this comment during a conversation with an aunt (defendant’s sister) regarding complainant’s mother’s potential pregnancy. Given this context, the statement does not suggest that complainant lies in general, or fabricated sexual abuse accusations against defendant in particular. Any claim that the statement (which complainant denied making) tends to show that she is untruthful or uncommonly biddable seriously distorts its meaning. And this hearsay evidence was plainly offered for its truth. The point of the proposed testimony was to convince the jury that complainant’s account of sexual abuse at defendant’s hands was instigated by his estranged wife. In short, while defendant claimed to be proffering this testimony for impeachment purposes, any possible impeachment was solely on the collateral issue of what complainant may have said about whether her mother was pregnant. The case would be different if defendant had offered to prove that complainant admitted that she said only what her mother told her to say about defendant’s alleged acts of sexual abuse.

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

Smith, J.

(concurring). I find this a puzzling case, because its facts are substantially identical, in relevant ways, to those in People v Rosario (17 NY3d 501 [2011]) and Rosario’s companion case, People v Parada — but the result here is the exact opposite. Each of those previous cases, like this case, was a prosecution for sexual abuse of a child victim. In each, the victim was the People’s main witness. In each case, the People offered in evidence a prior consistent statement by the victim, in which she had disclosed the abuse to a friend or relative. In each of those cases, as in this one, the out-of-court statement provided compelling evidence that the child was telling the truth, and had neither invented her story out of spite nor been coached or pressured by anyone to tell it.

In Rosario and Parada, the majority held the children’s statements inadmissible, rejecting the People’s argument that they were within the “prompt outcry” exception to the hearsay rule. I dissented in Rosario, and concurred in the result in Parada (where the majority found the error to be harmless) (see 17 NY3d at 515-521). I acknowledged that the prompt outcry exception, as traditionally understood, did not fit the cases, but I said that the exception should be broadened, arguing that to keep the children’s out-of-court statements from the jury was unfair to the People and the victims, and risked a miscarriage of justice.

The only significant difference between this case and the two earlier ones seems to be that the People here do not rely on the prompt outcry exception to the hearsay rule, but assert that no exception is necessary because the out-of-court statement was not hearsay at all — that it was offered not to prove its truth, but for a nonhearsay purpose. The majority accepts this argument, quoting an Appellate Division case (also called, by coincidence, People v Rosario) that says such out-of-court statements serve to explain “the investigative process” and to complete “the narrative of events leading to the defendant’s arrest” (majority op at 231, quoting 100 AD3d 660, 661 [2012]). The majority adds that the out-of-court statement was “relevant to the jury’s assessment of complainant’s alleged motive to lie” (majority op at 232).

I am unable to follow the majority’s logic. Why did “the investigative process” here need explaining? What narrative was there to complete? The jury obviously knew that the victim had disclosed the abuse some time before the trial — what did it care when and how she did so, unless the nature and circumstances of the earlier disclosure persuaded the jury it was truthful? We have at times countenanced the admission of out-of-court statements by alleged victims made to police officers, on the theory that it was important for the jury to understand that the police had a good reason for their actions (see People v Morris, 21 NY3d 588, 596 [2013]; People v Tosca, 98 NY2d 660 [2002]). Thus, the out-of-court statements in those cases were held to serve a purpose that did not depend on their truthfulness: whether true or false, they motivated the police to do what they did, and the motive of the police was something the jury might need to know. But the disclosure here was not made to the police: it was made to the victim’s brother and mother. The jury had no reason to know their motives — or, indeed, to know or care what they did in response to the disclosure of abuse.

As for the victim’s “alleged motive to lie,” how was the jury supposed to use the out-of-court disclosure to assess it without making any judgment about whether the disclosure was truthful or not? I would see the majority’s point if defendant had alleged a motive to lie that arose after the out-of-court statement — that would make the statement admissible under the recent fabrication exception to the hearsay rule (People v McClean, 69 NY2d 426, 428 [1987]). But there is no claim of recent fabrication in this case.

Despite what I consider to be flaws in the majority’s reasoning, I welcome the rule that this case seems to establish: that, at least in child sex abuse cases, testimony to the victim’s out-of-court disclosure of the abuse will be admissible where it is relevant to the victim’s credibility. I think, for the reasons given in my Rosario opinion, that such testimony enhances the likelihood of a trial that is fair to both sides. There is one important caveat, which I think is implicit in the majority opinion: the rule is limited to prior statements of a testifying witness. Prior consistent statements are, as the majority explains, a relatively benign form of hearsay (majority op at 230). It would be very different — and, in my view, would conflict unacceptably with the basic premise of the hearsay rule — to admit on a similar theory an out-of-court statement by a declarant not subject to cross-examination.

Chief Judge Lippman

(dissenting). The majority eviscerates the hearsay rule and allows wholesale circumvention of the prompt outcry rule by countenancing the admission of prior consistent statements that provide a “narrative” or “investigative purpose” even where the investigative purpose is not in issue. As the concurrence makes plain, these statements are obviously introduced to bolster the complainant’s credibility and establish the truth of the accusation. Yet I disagree with the concurrence in its proposed expansion of the prompt outcry rule beyond all recognition. Therefore, I dissent and would hold that the trial court’s admission of the half brother’s and mother’s testimony, during which they repeated the complainant’s out-of-court statements, unfairly bolstered the complainant’s testimony and constituted reversible error.

The majority would have us believe that these statements are not hearsay because they are part of a “narrative” or set forth an “investigative purpose,” and are not introduced for their truth. But the complainant’s out-of-court statements repeatedly communicated to the jury by her half brother and mother were introduced to describe what abuse occurred. The mother’s and half brother’s repetition of these statements would have been useless to the People unless the jury accepted them as true. They constitute double hearsay that did not fall within any exception to the rule. The complainant had already described the crime on the stand, and recounted how she reported the abuse, without any substantial challenge by defense counsel. Where there was no basis to rehabilitate the complainant, the only possible purpose of admitting the half brother’s and mother’s testimony was to reinforce the complainant’s statements and make her appear more reliable. As we observed in People v McDaniel (81 NY2d 10, 16 [1993]), improper bolstering is prohibited because of the concern that untrustworthy testimony may appear more reliable simply because it has been repeated.

Out-of-court statements offered for the truth of the matters they assert are hearsay and “may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable” (Nucci v Proper, 95 NY2d 597, 602 [2001]). The hearsay rule guards against “traditional testimonial infirmities” such as insincerity, ambiguity, and faulty memory or perception (id. at 604), some of which are implicated here. In Nucci, proffered out-of-court statements made several days after a medical malpractice incident were reported by the plaintiff s relative who “may have had a strong motive to shade her testimony” (id. at 603). In that case, we emphasized that “[s]ome of the statements involved double hearsay,” a further ground to question their reliability (id.).

The “investigative” or “narrative” rationale the majority advances today swallows the hearsay rule. Any statement that explains a narrative tangentially related to a crime could be admitted into evidence pursuant to the majority’s reasoning. Without confining the exception to a narrow set of circumstances, such as sexual abuse cases where the investigation is in issue, the majority countenances the wholesale admission of hearsay. Indeed, a narrative is defined as “a story,” “an account of a series of events, facts, etc., given in order and with the establishing of connections between them” (Oxford English Dictionary [3d ed 2003]), and “a[n] . . . account of events, experiences, or the like, whether true or fictitious.” Such broad opportunity for the admission of hearsay creates a danger of false and fabricated accusations spread amongst family and friends who would then enhance the complainant’s reliability.

Moreover, in the few cases where the investigative purpose rule has been applied, that purpose was in issue and the court provided a proper limiting instruction to the jury prescribing the use of the statement for a narrow purpose and not for its truth. For example, as the majority points out, in People v Gregory (78 AD3d 1246, 1246 [3d Dept 2010], lv denied 16 NY3d 831 [2011]), a police officer’s testimony about the victim’s comments explained the officer’s actions and the sequence of events in an investigation. Accompanying the testimony was an appropriate limiting instruction prohibiting the jury from accepting the statement for its truth. Here, the danger of the hearsay was missed entirely and the limiting instruction was plainly inadequate; the jury was only told that the statements were not to be used as proof that the backyard smelled, and there was no instruction barring the jury’s use of the remaining statements to prove that the abuse actually occurred.

Extending the “prompt outcry” rule to these circumstances, as suggested by the concurrence, is just another recipe for the admission of false and fabricated accusations. Any disclosure made by the victim about a crime before the crime was reported to authorities would, under this formulation, be admissible. Currently, the prompt outcry rule “permits evidence that a timely complaint was made” (People v Rosario, 17 NY3d 501, 511 [2011] [internal quotation marks and citation omitted]). The reporting must occur shortly after the crime (see People v McDaniel, 81 NY2d at 17 [victim reported the abuse the morning after it occurred]; Rosario, 17 NY3d at 513 [victim’s statement inadmissible where as long as five months elapsed between the abuse and the report]). Further, only the fact of a complaint, not its accompanying details, may be elicited (see McDaniel, 81 NY2d at 17; People v Rice, 75 NY2d 929, 932 [1990]). We have never before held that the prompt outcry rule applies to reports this far removed from the crime — over a year after the abuse — and containing such graphic description of the crime.

The erroneous admission of the half brother’s and mother’s statements here severely prejudiced defendant because, apart from the complainant, there were no witnesses to the crime. Without other corroborating evidence, the repeated communication of the complainant’s out-of-court statements constitutes reversible error (see McDaniel, 81 NY2d at 20).

For the reasons stated above, I dissent and would reverse and remand for a new trial.

Judges Graffeo, Pigott and Abdus-Salaam concur; Judge Smith concurs in result in an opinion; Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs.

Order affirmed.

       Webster’s Unabridged Dictionary (2d ed 1998).


source: Caselaw Access Project

author:
Ajbdus-Salaam, J. Smith, J.
      Rivera, J.

license: Public Domain

text:
    [21 NE3d 1000, 997 NYS2d 339]
    Paul M. Ellington, Appellant, v EMI Music, Inc., et al., Defendants, and EMI Mills Music, Inc., Respondent.
    Argued September 11, 2014;
    decided October 23, 2014

      POINTS OF COUNSEL

      Scarola Malone & Zubatov LLP, New York City (Richard J.J. Scarola and Alexander Zubatov), for appellant.
    I. EMI’s hiring and paying its own wholly-owned affiliates to engage in foreign royalty collection is a breach of contract. (Croce v Kurnit, 737 F2d 229; Nolan v Sam Fox Publ. Co., Inc., 499 F2d 1394; Reape v New York News, 122 AD2d 29; Sutton v East Riv. Sav. Bank, 55 NY2d 550; Tougher Heating & Plumbing Co. v State of New York, 73 AD2d 732; River View Assoc. v Sheraton Corp. of Am.,
      33 AD2d 187.) II. At best for EMI, the agreement’s language is ambiguous and cannot be resolved in its favor on a motion to dismiss. (Granite Partners, L.P. v Bear, Stearns & Co. Inc., 17 F Supp 2d 275.) III. EMI’s non-market-rate deals with its own wholly-owned affiliates, diluting plaintiffs negotiated 50% share of royalties while increasing its own, violates the implied covenant of good faith and fair dealing. (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Sorenson v Bridge Capital Corp., 52 AD3d 265; Skillgames, LLC v Brody, 1 AD3d 247; Tractebel Energy Mktg., Inc. v AEP Power Mktg., Inc., 487 F3d 89; Leon v Martinez, 84 NY2d 83; Dalton v Educational Testing Serv., 87 NY2d 384.) IV EMI’s motion should not have been granted in the absence of discovery. (Ackerman v 305 E. 40th Owners Corp., 189 AD2d 665; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314.) V. The “affiliates” language in the agreement’s preamble presents yet another basis on which this action should be permitted to go forward. (VKK Corp. v National Football League, 244 F3d 114; GTE Wireless, Inc. v Cellexis Intl., Inc., 341 F3d 1.)

      Pryor Cashman LLP, New York City (Donald S. Zakarin, Bryan T. Mohler and Benjamin S. Akley of counsel), for respondent.
    I. The undisputed documentary evidence conclusively establishes that Mills Music, Inc. (EMI) did not breach the 1961 agreement. (Brooke Group v JCH Syndicate 488, 87 NY2d 530; Greenfield v Philles Records, 98 NY2d 562; Silvester v Time Warner, 1 Misc 3d 250, 14 AD3d 430; Reape v New York News, 122 AD2d 29; Sutton v East Riv. Sav. Bank, 55 NY2d 550; Tougher Heating & Plumbing Co. v State of New York, 73 AD2d 732; River View Assoc. v Sheraton Corp. of Am., 33 AD2d 187, 27 NY2d 718; Elezaj v Carlin Constr. Co., 89 NY2d 992; Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 95 NY2d 437; Kass v Kass, 91 NY2d 554.) II. Paul M. Ellington has neither pleaded nor preserved a good faith and fair dealing claim, which in any event is meritless. (Hecker v State of New York, 20 NY3d 1087; Elezaj v Carlin Constr. Co., 89 NY2d 992; Matter of SoHo Alliance v New York City Bd. of Stds. & Appeals, 95 NY2d 437.) III. Foreign subpublishers that are EMI companies are not “affiliates” under the 1961 agreement. (VKK Corp. v National Football League, 244 F3d 114; In re New York City Asbestos Litig., 41 AD3d 299.)
   OPINION OF THE COURT

Ajbdus-Salaam, J.

In this breach of contract action, we have been asked to interpret the terms of a royalty provision contained in a 1961 United States copyright renewal agreement between the legendary Edward Kennedy “Duke” Ellington (Duke Ellington) and Mills Music, Inc. (now EMI). We hold that the disputed terms of the Agreement are clear and unambiguous. Thus, we affirm the Appellate Division.

I

Plaintiff Paul Ellington, an heir and grandson of Duke Ellington, commenced this breach of contract action to recover royalties allegedly due under a royalty provision contained in a copyright renewal agreement dated December 19, 1961. The Agreement designates Duke Ellington and named members of his family as the “First Parties.” The Agreement is expressly binding upon all of Duke Ellington’s heirs and assigns. The Agreement defines “Second Party” as consisting of a group of music publishers including Mills Music, Inc. (whose successor in interest is respondent EMI) as well as “AMERICAN ACADEMY OF MUSIC, INC., GOTHAM MUSIC SERVICE, INC., and their predecessors in interest, and any other affiliate of Mills Music, Inc.” (Agreement, preamble).

The Agreement assigned to the Second Party the right to renew the United States copyright to certain musical compositions written by Duke Ellington, specified in Schedules 1, 2, and 3 of the Agreement, subject to the payment of royalties. Accordingly, the music publishers designated as the Second Party owned the copyright to the relevant compositions and were required to renew the copyrights on behalf of Duke Ellington. Specifically, the Agreement states that Duke Ellington confirms that “Mills Music, Inc., American Academy of Music, Inc., and Gotham Music Service, Inc., or any of their predecessors in interest or any other affiliated companies of Mills Music, Inc., not specifically mentioned, were and are now possessed of and are entitled to the original copyrights of the [relevant] musical compositions” (Agreement ¶ 5).

Paragraph 3 (a) of the Agreement, the royalty provision at issue, requires the Second Party to pay the First Parties “a sum equal to fifty (50%) percent of the net revenue actually received by the Second Party from . . . foreign publication” of the relevant musical compositions (Agreement ¶ 3 [a] [emphasis added]). This type of provision is known as a “net receipts” arrangement under which a composer, such as Duke Ellington, would collect royalties based on income received by a publisher after the deduction of fees charged by foreign subpublishers (see e.g. Jobim v Songs of Universal, Inc., 732 F Supp 2d 407, 413 [SD NY 2010]). At the time the Agreement was executed, foreign subpublishers were typically unaffiliated with domestic music publishers. Recently, however, many domestic publishers, including EMI, have affiliated with foreign subpublishers and it is this development that forms the basis of plaintiffs claim of breach of contract.

Pursuant to limited audit rights allowed by contract, plaintiff requested an audit of EMI. During the audit plaintiff discovered that EMI had begun using affiliated foreign subpublishers, who retained 50% of the royalties generated from the foreign sale of the relevant musical compositions originally retained by the unaffiliated subpublishers. The remaining 50% was split equally between EMI and the First Parties as required by the royalty provision.

Plaintiff commenced this action against EMI alleging breach of contract and fraudulent concealment, and also requested declaratory and injunctive relief. Plaintiff claimed that by using affiliated foreign subpublishers, EMI was double-dipping into the entire pot of revenue generated from the foreign sale of the relevant musical compositions. Essentially, plaintiff claims that the amount retained by the affiliated foreign subpublishers prior to remittal of the remainder to EMI is an amount received by EMI, and therefore, when using affiliated foreign subpublishers, EMI should remit to the First Parties half of the entire amount generated from the foreign sale of the relevant musical compositions. By failing to do so, he alleges that EMI has breached the Agreement by diluting his share of the royalties.

EMI moved to dismiss plaintiffs complaint pursuant to CPLR 3211 (a) (1) and (7), arguing that its method of accounting and payment is consistent with the terms and conditions of the Agreement. In opposition, plaintiff argued that the terms of the Agreement are ambiguous and he therefore needed discovery.

Supreme Court granted EMI’s motion, and dismissed the amended complaint in its entirety (Ellington v EMI Music, Inc., 33 Misc 3d 1209[A], 2011 NY Slip Op 51827[U] [Sup Ct, NY County 2011]). The court held that “[t]he royalty payment provision is clear and unambiguous” (id. at *4). “[T]he contracting parties made no distinction in the royalty payment terms based on whether the foreign subpublishers are affiliated or unaffiliated with the [domestic] publisher” and thus, the court determined “it would be improper at any time, but especially now, some 50 years after the date of the [Agreement]’s execution, to read such a distinction into the [Agreement]” (id.). The court also held that “[a]bsent explicit language demonstrating the parties’ intent to bind future affiliates of the contracting parties, the term ‘affiliates’ [in the definition of Second Party] includes only those affiliates in existence at the time that the contract was executed” (id. at *5).

The Appellate Division affirmed (Ellington v EMI Music Inc., 106 AD3d 401 [1st Dept 2013]), holding that Supreme Court “correctly determined that the [Agreement's definition of ‘Second Party’ included only the parties named therein and ‘other affiliates of [EMI]’ that were in existence at the time the [A]greement was executed,” which “did not include foreign sub-publishers that had no existence or affiliation with [EMI] at the time of contract” (id. at 403). This Court granted plaintiff leave to appeal (21 NY3d 865 [2013]).

II

Where the terms of a contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and reading the contract as a whole (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162-163 [1990]). “The words and phrases used by the parties must, as in all cases involving contract interpretation, be given their plain meaning” (Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534 [1996]; see Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 564 [2014]; J. D'Addario & Co., Inc. v Embassy Indus., Inc., 20 NY3d 113, 119 [2012]).

An agreement is unambiguous “if the language it uses has ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’ ” (Greenfield, 98 NY2d at 569, quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355 [1978]). Ambiguity in a contract arises when the contract, read as a whole, fails to disclose its purpose and the parties’ intent (see Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534 [1996]), or when specific language is “susceptible of two reasonable interpretations” (State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; see Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]). “The best evidence of what parties to a written agreement intend is what they say in their writing ... a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield, 98 NY2d at 569 [citation and internal quotation marks omitted]).

Plaintiff argues that two terms in the Agreement are ambiguous: (1) the phrase “net revenue actually received” in the royalty provision and (2) the term “any other affiliate” in the definition of Second Party.

A. “Net Revenue Actually Received”

As stated, the royalty provision provides that the “Second Party” will pay to the “First Parties” “a sum equal to fifty (50%) percent of the net revenue actually received by the Second Party from . . . foreign publication” (Agreement ¶ 3 [a] [emphasis added]). This language is not ambiguous, as a plain reading of the provision indicates that plaintiff, through payment to the First Parties, is entitled to receive 50% of the net revenue actually received from foreign subpublishers.

The Agreement does not state what percentage of the net receipts generated from the foreign sale of the relevant musical compositions is to be retained by the foreign subpublishers. Rather, it states only that whatever amount EMI actually received would be split equally with the First Parties. The Agreement contemplates that the royalties paid to the First Parties would be based on the revenue remitted to EMI itself. Although at the time the Agreement was executed the parties apparently did not contemplate that EMI would affiliate itself with foreign subpublishers, the percentage retained by the affiliated foreign subpublishers is not an amount actually received by EMI, but a fee for the subpublishers’ services.

The royalty provision makes no distinction between affiliated and unaffiliated foreign sub publishers. Therefore, the courts below properly declined to read such a distinction into the contract as it does not appear to have been the intent of the parties that such a distinction be included, primarily because they were understandably unaware that such a change in the industry would occur. Nonetheless, the Agreement does not prevent EMI from using affiliated foreign subpublishers, and it does not prevent the affiliated foreign subpublishers from retaining a portion of the total sale owed to them for their services, prior to remitting the remainder to EMI. Thus, the phrase “net revenue actually received” is not ambiguous.

B. “Any Other Affiliate”

The second phrase plaintiff claims is ambiguous is within the definition of Second Party. The Agreement defines “Second Party” as consisting of a group of music publishers including “MILLS MUSIC, INC., a New York corporation, AMERICAN ACADEMY OF MUSIC, INC., GOTHAM MUSIC SERVICE, INC., and their predecessors in interest, and any other affiliate” (Agreement, preamble). Plaintiff asserts that the affiliated foreign subpublishers are included in the term “any other affiliate.”

Absent explicit language demonstrating the parties’ intent to bind future affiliates of the contracting parties, the term “affiliate” includes only those affiliates in existence at the time that the contract was executed (VKK Corp. v National Football League, 244 F3d 114, 130-131 [2d Cir 2001] [“The Release’s reference to ‘affiliates’ (is) stated in the present tense. Nothing . . . indicates the inclusion of future rather than present members”]; Budget Rent A Car Sys., Inc. v K&T, Inc., 2008 WL 4416453, *4, 2008 US Dist LEXIS 73024, *10-11 [D NJ, Sept. 24, 2008, No. 2:05-CV-3655 (WJM)(RJH)] [the exclusive license at issue was not violated here because “(n)othing in the License Agreement suggests that the parties intended the License Agreement to extend to future corporate parents or affiliates”]).

Furthermore, the parties did not include any forward looking language. If the parties intended to bind future affiliates they would have included language expressing that intent. Absent such language, the named entities and other affiliated companies of EMI’s predecessor which existed at the time are bound by the provision, not entities that affiliated with EMI after execution of the Agreement. As it is undisputed that the affiliated foreign subpublishers at issue here were not affiliates at the time the Agreement was executed, they are not members of the Second Party.

Additionally, the use of present tense language in the Agreement also demonstrates that the parties intended that the Agreement would bind only affiliates in existence at the time of the Agreement. A later clause in the Agreement states that Duke Ellington confirms that “Mills Music, Inc., American Academy of Music, Inc., and Gotham Music Service, Inc., or any of their predecessors in interest or any other affiliated companies of [EMI] not specifically mentioned, were and are now possessed of and are entitled to the original copyrights of the [relevant] musical compositions” (Agreement ¶ 5 [emphasis added]). This language indicates that the parties intended that the members of the Second Party were to be entities who own the copyright in the relevant musical compositions, rather than entities, who for any number of reasons, may be affiliated with the publisher. As the affiliated foreign subpublishers do not acquire a United States copyright to the relevant compositions, the parties likely would not have intended them to be members of the Second Party. The role of the affiliated foreign subpublishers is simply to provide subpublication services in their respective countries. EMI still retains the copyright to the relevant musical compositions.

m

We conclude that the terms “net revenue actually received” in paragraph 3 (a) and “any other affiliate” in the definition of Second Party are not ambiguous.

We note that the globalization of the music industry has rendered this “net receipts” arrangement much more favorable to music publishers than to artists. Nonetheless, we must examine the parties’ intentions based on the plain language within the four corners of the Agreement. In 1961, Ellington and Mills Music, Inc. agreed that they would share equally the royalties that Mills Music, Inc. actually received from the foreign sale of the relevant musical compositions. EMI’s corporate reconfiguration did not, as the dissent suggests, “avoid the understanding of the parties” (dissenting op at 253). Rather, the parties merely did not account for the possibility that the publisher would eventually affiliate with foreign subpublishers. The terms of the contract are clear and unambiguous and the Appellate Division correctly held that plaintiff has not stated a cause of action for breach of the agreement.

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

Smith, J.

(concurring). I agree with the majority’s result, but not its reasoning. As a general proposition, it seems wrong to me that, when a contract is written to bind “any . . . affiliate” of a party, its effect should be limited to affiliates in existence at the time of contracting. That invites parties to create new affiliates, and to have them do what the old affiliates are prohibited by the contract from doing.

Nor does the Agreement’s use of the present tense in referring to EMI’s affiliates suggest to me that later-created affiliates were to be outside its scope. If I say “I have three grandchildren” I am making a statement of fact; I am not restricting the definition of “grandchild” so as to exclude any who might later be born.

Indeed, if the facts of this case were a bit different, I very much doubt that the majority would give “affiliate” such a restrictive reading. Suppose that EMI had created new affiliates and arranged for them to receive not the 50% of royalties that unaffiliated foreign subpublishers had previously received, but 90%. If the new affiliates had no obligation to the Ellington family under the agreement, the family’s share would be reduced to 5% — obviously contrary to what the parties intended.

What persuades me nevertheless to concur in the result here is the parties’ practical construction of the Agreement. For many years before this litigation began, EMI provided semiannual royalty statements to the Ellington estate, and later to plaintiff individually, which clearly disclosed that affiliated subpublishers were getting the same 50% of foreign royalties that unaffiliated ones previously got. These disclosures go back at least to 1994, and plaintiff personally received them beginning in 2002. The record discloses no complaint by anyone about the split until September of 2008, and plaintiff offers no explanation for his and his predecessor’s many years of acquiescence. This persuades me that the parties always understood that 50% of foreign royalties could be paid to foreign subpublishers — affiliated or not — before plaintiff’s share of the royalties was computed.

Rivera, J.

(dissenting). I disagree with the majority that respondent EMI has carried its burden on this motion to dismiss because, in my opinion, the term “affiliate” as used in the Agreement may be interpreted as appellant suggests to include EMI’s foreign affiliated entities. This reasonable interpretation of the Agreement supports a conclusion that appellant has sufficiently pleaded a cause of action for breach of contract. To hold otherwise, as the majority does here, forecloses appellant from pursuing his claim that EMI has avoided its obligations under the Agreement by employing music industry business models that increase revenue for publishers, to the detriment of creative artists. Therefore, I dissent.

Our review of this appeal, which is from dismissal of the complaint pursuant to CPLR 3211 (a) (1) and (7), requires that we “must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory” (Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 [2012]). “[T]he pleading is to be afforded a liberal construction” (Leon v Martinez, 84 NY2d 83, 87 [1994]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314 [2002]; see CPLR 3026), and “[u]nder CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 87-88 [1994], citing Heaney v Purdy, 29 NY2d 157 [1971]). Unlike on a motion for summary judgment where the court “searches the record and assesses the sufficiency of the parties’ evidence,” on a motion to dismiss the court “merely examines the adequacy of the pleadings” (State of New York v Barclays Bank of N.Y., 151 AD2d 19, 21 [3d Dept 1989], affd 76 NY2d 533 [1990]).

The Court has previously faced questions regarding the application of existing legal doctrines to agreements which predated industry-wide developments, and has reaffirmed the vitality of traditional contract precepts in the face of even unanticipated changes. For example, in Greenfield v Philles Records we said that, “[d] espite the technological innovations that continue to revolutionize the recording industry, long-settled common-law contract rules still govern the interpretation of agreements between artists and their record producers” (98 NY2d 562, 569 [2002]).

Under our law, where the parties to a breach of contract action dispute the intended meaning of the agreement, we look to the contract itself to determine if the terms are unambiguous, giving the words of the contract their “plain meaning” (Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 559-560 [2014] [“a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (citations omitted)]). If the terms are ambiguous, dismissal of the complaint under CPLR 3211 must be denied (see Telerep, LLC v U.S. Intl. Media, LLC, 74 AD3d 401, 402 [1st Dept 2010]). Ambiguity exists when, looking within the four corners of the document, the terms are reasonably susceptible of more than one interpretation (see Greenfield, 98 NY2d at 569; Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]).

Applying these contract principles to this Agreement, and reading the complaint liberally, as the Court is required to do, I would conclude that the Agreement contains unclear and contradictory language which renders the term “affiliate” ambiguous. I would therefore reverse the Appellate Division.

At the heart of the parties’ dispute is the intent of the Agreement’s foreign publication royalties provision. Respondent EMI argues that under this provision the parties share the net revenues actually received, meaning the revenues that EMI receives after the costs and fees for foreign publication are deducted. Appellant agrees, but claims that EMI has sought to garner a greater share of the revenues by using its own affiliates, rather than unaffiliated entities, to conduct the foreign publication process. This, appellant maintains, is in direct contravention of the intent of the parties because at the time the parties entered the Agreement they intended to share the costs and fees charged only by unaffiliated entities.

Appellant argues, and EMI concedes, that there have been changes in the manner in which publishers pursue foreign publication of creative works such as those involved in this case. According to appellant, over time the music publishers began to use their own affiliates for foreign publication. By so doing, the music publishers, including EMI, captured a greater share of the revenue for themselves by claiming net revenues as well as the fees formerly charged by the unaffiliated foreign entities. (See also Ira B. Selsky, Music Publishing in the International Marketplace, 17 Whittier L Rev 293, 298 [1995].) Appellant claims EMI’s share comes at a cost to the Ellington family members and their successors because EMI does not include as part of the “net revenue actually received” the revenue EMI’s foreign affiliates are paid for foreign publication.

Respondent EMI contends that the only affiliates referred to in the Agreement are those of EMI’s predecessor, Mills Music, Inc., which, according to EMI, cannot include foreign subpublishers. This merely begs the question of what is an affiliate. I find the failure to define affiliate in this Agreement indicates that the meaning is not as obvious and clear as EMI suggests, and very well supports appellant’s argument that affiliate includes foreign affiliates.

As a general matter, an “affiliate” is defined as a “corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent, or sibling corporation” (Black’s Law Dictionary [9th ed 2009]; see also VKK Corp. v National Football League, 244 F3d 114, 130 [2d Cir 2001] [defining “affiliate” as “being close in connection, allied, associated, or attached as a member or branch”]). Nothing in this common definition suggests that an affiliate does not include a foreign affiliate. Courts may not redefine a term to suit one party’s argument, or choose to ignore the meaning generally attached to a term without some basis in the parties’ agreement. Therefore, there is an open question that cannot be answered on this motion to dismiss as to whether the parties intended to include foreign affiliates.

Respondent EMI argues, nevertheless, that, in context, the Agreement’s references make clear that foreign affiliates are excluded from that term’s coverage. I cannot find such absolute clarity in the text of the Agreement. For example, although EMI asserts that the only affiliates are those of Mills Music, the Agreement does not appear to be so limited. For example, the second “Whereas” clause refers to “the Second Party or any of its affiliated companies.” If, as EMI claims, the only affiliates covered by the Agreement are those of Mills Music, there is no need to reference affiliated companies of the Second Party, which consists of several other music publishers in addition to Mills Music. Perhaps this reference is merely redundant or superfluous; or perhaps it refers to affiliates of the other companies listed in the Preamble as “Second Party” entities.

In response to appellant’s contention that EMI uses foreign subpublisher affiliates to avoid its obligations under the contract and reduce the revenues due to appellant, EMI claims that the Agreement includes only affiliates in existence at the time of the formation of the contract. However, the purpose of the Agreement, as well as the custom in the music industry, supports appellant’s interpretation.

Under the Agreement, Ellington family members transferred to the music publishers their interests in certain of Duke Ellington’s creative works; works which at the time, and today, are undeniably of great creative and monetary value. In return, the music publishers agreed to provide royalties from various sales of these works, including revenues from foreign publication. Appellant argues that Duke Ellington and his family did not intend to enter an Agreement which promised them royalties, but permitted the music publishers, through corporate sleight of hand, to increase the publishers’ revenues while reducing the Ellingtons’ royalties.

Appellant further asserts, and EMI does not dispute, that at the time the parties entered the Agreement Mills Music followed the general industry practice of using foreign unaffiliated subpublishers for foreign publication. The existence of this music industry custom, understood by the parties to be the operative business model and the way things were done, supports appellant’s claim that all the parties to the Agreement understood that foreign subpublishers would be used, and their fees would be discounted from the revenue. “When trade usage is widespread, there is a presumption that the parties intended its incorporation by implication, unless the contract negates this implication” (see Jobim v Songs of Universal, Inc., 732 F Supp 2d 407, 417 [SD NY 2010], citing Contract Law § 9:25 [28 West’s NY Prac Series]).

Respondent EMI argues that nothing in the contract prohibits it from modifying its practices and adapting to industry changes. It contends that appellant is in reality arguing to reform the Agreement from a net revenue contract to an at source contract. This argument is simply an attempt to distract attention from the real issue in the case. Appellant does not dispute that the foreign publication provision applies a net receipt methodology for determining royalties. Rather, he argues that EMI has manipulated the agreed-to net receipt provision to exclude revenues EMI actually receives through its foreign affiliate. The Agreement lends itself to more than one interpretation concerning the net revenue sharing provision, and appellant’s interpretation seems reasonable, or at least as reasonable as the one proposed by EMI.

As a final note, appellant’s claims should give us pause because they suggest this is not, as the majority seems to believe, the unintended results of “the globalization of the music industry” that renders the Agreement “more favorable to music publishers than to artists” (majority op at 247 [footnote omitted]). Indeed, I share the concurring opinion’s sense that there is something troubling about interpreting “affiliate” in the context of this Agreement, as the majority does, to include only those affiliates in existence at the formation of the contract (concurring op at 248). This interpretation sets the stage for the type of abuse alleged here, namely corporate reconfigurations that avoid the understanding of the parties.

Judges Graffeo, Read and Pigott concur; Judge Smith concurs in result in an opinion; Judge Rivera dissents and votes to reverse in an opinion in which Chief Judge Lippman concurs.

Order affirmed, with costs.

      . Plaintiff abandoned his fraudulent concealment claim.

      . Plaintiffs argument that defendant may have breached the covenant of good faith and fair dealing by paying its affiliated foreign subpublishers rates that far exceed the market rate paid to unaffiliated subpublishers was raised for the first time in this Court, and is unpreserved. Although the parties mentioned in their Appellate Division briefs a hypothetical case where EMI may have breached the covenant of good faith and fair dealing, plaintiff did not plead that claim and did not squarely make that claim prior to his appeal to this Court.

      . According to the parties, rather than the “net receipts” type of arrangement at issue in this case, agreements between artists and music publishers now usually employ an “at source” formula, under which an artist “collects] royalties based on a percentage of income determined before licensing fees are deducted” (Jobim v Songs of Universal, Inc., 732 F Supp 2d 407, 413 [SD NY 20101).


author: Chief Judge Lippman. Abdus-Salaam, J.

text:
    [22 NE3d 179, 997 NYS2d 671]
    The People of the State of New York, Respondent, v Genna A. Turner, Appellant.
    Argued September 17, 2014;
    decided October 23, 2014

      POINTS OF COUNSEL

      Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of counsel), for appellant.
    I. Where there was no mention of postrelease supervision as part of the plea allocution, and Genna A. Turner was only notified of this aspect of her sentence immediately prior to being sentenced, reversal is required. (People v Turner, 107 AD3d 1543; People v Louree, 8 NY3d 541; People v Catu, 4 NY3d 242; People v Murray, 15 NY3d 725; People v McAlpin, 17 NY3d 936; People v Pett, 77 AD3d 1281; Johnson v Zerbst, 304 US 458; People v McDermott, 68 AD3d 1453.) II. The arrest of Genna A. Turner, properly determined to be without requisite probable cause, tainted all evidence subsequently obtained; and the determination that the station house statement obtained soon thereafter was sufficiently “attenuated” from the arrest was incorrect. (Brown v Illinois, 422 US 590; Dunaway v New York, 442 US 200; People v Havelka, 45 NY2d 636; People v Bradford, 15 NY3d 329; People v Conyers, 68 NY2d 982; People v Gethers, 86 NY2d 159; People v Johnson, 66 NY2d 398; People v Jones, 21 NY3d 449; Mapp v Ohio, 367 US 643; Wong Sun v United States, 371 US 471.)

      Sandra Doorley, District Attorney, Rochester {Matthew Dun-ham of counsel), for respondent.
    I. Defendant was required to preserve her contention that her plea was not knowing, voluntary and intelligent based upon the trial court’s failure to inform her that she would be subject to a term of postrelease supervision. (People v Catu, 4 NY3d 242; People v Louree, 8 NY3d 541; People v Murray, 15 NY3d 725; People v Peque, 22 NY3d 168; People v Lopez, 71 NY2d 662; People v McAlpin, 17 NY3d 936; People v Seaberg, 74 NY2d 1; People v Lopez, 28 NY2d 148.) II. There is record support for the Appellate Division’s conclusion that defendant’s station house confession was sufficiently attenuated from her initial detention by the police. (People v Bradford, 15 NY3d 329; Brown v Illinois, 422 US 590; People v Johnson, 66 NY2d 398; Matter of Leroy M., 16 NY3d 243; People v Conyers, 68 NY2d 982; People v Jones, 21 NY3d 449; People v Martinez, 80 NY2d 444; People v Cantor, 36 NY2d 106; People v Quinones, 12 NY3d 116; People v Rogers, 52 NY2d 527.)
   OPINION OF THE COURT

Chief Judge Lippman.

The primary issue presented by this appeal is whether defendant was required to preserve her claim that her plea was not knowingly and voluntarily entered where she first received notice of the imposition of a term of postrelease supervision (PRS) at sentencing, and submitted to sentencing with the PRS addition. We reverse, vacate the plea, and remit for further proceedings, holding that the court must notify defendant of a term of PRS sufficiently in advance of its imposition that defendant has the opportunity to object to the deficiency in the plea proceeding. In the absence of such an opportunity, preservation is unnecessary.

In 2010, defendant assaulted her friend with a knife and then fled the scene. Shortly thereafter, a police officer noticed defendant pacing back and forth in a parking lot about a mile away. Without asking her any questions, the officer handcuffed defendant and placed her in the back of his patrol car. She then offered to show the officer where she stashed the knife. After locating the knife, the officer arranged a showup identification during which the victim identified defendant as her assailant. Forty minutes after the arrest, defendant was placed in an interrogation room. About 20 minutes later, she waived her Miranda rights and, during light banter with the officers, she confessed to the crime. She added that she committed the crime with the hope that she would go to jail and be killed in prison.

Finding that the arrest lacked probable cause, County Court suppressed the knife and the incriminating statement defendant made in the patrol car. However, County Court did not suppress defendant’s interrogation statements, ruling they were attenuated from the illegal arrest.

Thereafter, defendant pleaded guilty to an indictment charging her with attempted murder in the second degree with the understanding that the court would impose a sentence of 15 years’ imprisonment. The court failed to mention the period of PRS at the plea hearing.

In the middle of the subsequent sentencing proceeding, the following colloquy transpired:

“PROSECUTOR: Judge, I believe — I can’t recall if the post-release supervision period was discussed at the time of plea. I think we should probably make a record of that now so it is clear.
“COURT: I intend to make a five year period of post release supervision.
“PROSECUTOR: Ms. Turner, have you had a chance to talk about that with your attorney?
“DEFENDANT: Yes.
“PROSECUTOR: Do you understand that[ ] that’s part of your plea, at the end of your prison sentence you will be on parole supervision for a period of five years?
“DEFENDANT: Correct.
“PROSECUTOR: You still wish to go through with sentencing today?
“DEFENDANT: Yes.”

County Court imposed the sentence promised at the plea, plus the five years of PRS.

On appeal, defendant argued, among other things, that her plea was involuntary while the People countered that defendant’s claim was unpreserved for appellate review. The Appellate Division affirmed the judgment. The majority extended the holding in People v Murray (15 NY3d 725 [2010]), ruling defendant’s failure to object to the imposition of PRS, despite her opportunity to do so, rendered her challenge unpreserved (107 AD3d 1543, 1547 [4th Dept 2013]). Noting that defendant indicated that she knew of the PRS term before sentencing was imposed, the majority reasoned that “defendant could have sought relief from the sentencing court in advance of the sentence’s imposition,” and thus “Louree’s rationale for dispensing with the preservation requirement is not presently applicable” (id. at 1547, quoting Murray, 15 NY3d at 727). Two Justices dissented from this ruling, and this appeal is before us by leave of one of them (21 NY3d 1047 [2013]).

We held in People v Catu that “[a] trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (4 NY3d 242, 244-245 [2005]). To meet due process requirements, a defendant “must be aware of the post-release supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action” (id. at 245). Without such procedures, vacatur of the plea is required (id.).

A defendant cannot be expected to object to a constitutional deprivation of which she is unaware. As we recognized in People v Louree, where the defendant was only notified of the PRS term at the end of the sentencing hearing, the defendant “can hardly be expected to move to withdraw [the] plea on a ground of which [he or she] has no knowledge” (8 NY3d 541, 546 [2007]). And, in that circumstance, the failure to seek to withdraw the plea or to vacate the judgment does not preclude appellate review of the due process claim.

The People would have us analogize this case to People v Murray (15 NY3d 725 [2010]), where we held that the defendant’s challenge to his plea on due process grounds was not preserved because he was informed at the plea allocution that he would receive a two-year PRS term, but then was notified at the outset of the sentencing proceeding that he would receive a three-year term. We are not persuaded. The defendant in Murray knew that PRS would be a part of the sentence when he accepted the

plea and was therefore mindful that his imprisonment might be extended if he were to violate the terms of his PRS. Because Murray was notified of the PRS term at the plea allocution, and was advised at the commencement of the sentencing hearing that the PRS term had changed, preservation by an objection was both possible and necessary (see Murray, 15 NY3d at 726-727).

Here, the court did not advise defendant at the time of her plea that her sentence would include any PRS, and only notified her of her PRS term in the middle of sentencing. The same reasoning that applied in Catu and Louree applies here: the defendant did not have sufficient knowledge of the terms of the plea at the plea allocution and, when later advised, did not have sufficient opportunity to move to withdraw her plea. Moreover, the prosecutor, not the court, led the sentencing colloquy and may have misled defendant by telling her that PRS was “part of her plea.”

Turning to defendant’s challenge to the admissibility of her confession, we do not disturb the denial of this branch of the suppression motion. Because application of the attenuation doctrine in this case involves a mixed question of law and fact Csee e.g. People v Divine, 6 NY3d 790, 791 [2006]), the Court may reverse the lower court’s attenuation finding only if there is no evidence in the record to support the decision (see People v Bradford, 15 NY3d 329, 333 [2010]). Here, there is record support for the affirmed finding that the custodial confession was attenuated from the illegal arrest.

Accordingly, the order of the Appellate Division should be reversed, defendant’s plea vacated, and the case remitted to County Court for further proceedings on the indictment.

Abdus-Salaam, J.

(dissenting). While I agree with the majority that defendant’s confession was admissible and that branch of her suppression motion was properly denied, I believe that her Catu (People v Catu, 4 NY3d 242 [2005]) argument required preservation in a manner consistent with the preservation rules that apply to challenges to the voluntariness of a guilty plea (see People v Peque, 22 NY3d 168, 182 [2013] [“Under certain circumstances, this preservation requirement extends to challenges to the voluntariness of a guilty plea”]; see also People v Tyrell, 22 NY3d 359, 364 [2013]; People v Clarke, 93 NY2d 904, 906 [1999]). Because the argument was unpreserved, I would affirm the Appellate Division order in its entirety.

Although the facts and arguments on the merits differ somewhat, this case is analogous to People v Murray (15 NY3d 725 [2010]). There we held that preservation of the defendant’s objection to postrelease supervision (PRS) was deemed to be required where defendant was informed in advance of his plea that he was facing a two-year period of PRS, but was then informed during sentencing that a three-year period of PRS would be imposed. We distinguished People v Louree (8 NY3d 541, 546 [2007]), noting that “[b]ecause [the] defendant could have sought relief from the sentencing court in advance of the sentence’s imposition, Louree’s rationale for dispensing with the preservation requirement” — that a defendant cannot move to withdraw his or her plea on a ground of which he or she has no knowledge — “is not presently applicable” (15 NY3d at 727).

To be sure, as noted, the facts here differ from Murray, in that Murray was informed prior to his plea that some period of PRS would attach to his sentence, whereas defendant here was not informed of PRS until sentencing. In other words, Murray did not involve a Catu error per se, but rather featured the somewhat related error we identified in People v Boyd (12 NY3d 390 [2009]). Despite the distinction between the substantive defects in the plea and sentencing proceeding here and in Murray, the principal logic of Murray is that preservation is required where the defendant has sufficient opportunity to object to PRS or withdraw his or her plea.

During sentencing, defendant was informed of the five-year period of PRS that attached to her guilty plea, and she had the opportunity to object to the imposition of PRS or to withdraw her plea. At the sentencing hearing, after being informed by the prosecutor that PRS had not been discussed during the plea allocution, the trial judge stated to defendant, “I intend to make a five year period of [PRS].” The prosecutor asked defendant whether she had discussed PRS with her attorney, to which she answered “Yes.” The prosecutor then clarified by asking defendant whether she understood that PRS was a part of her plea, and that “at the end of [her] prison sentence [she would] be on parole supervision for a period of five years.” Defendant responded, “Correct.” The prosecutor asked defendant whether she wished to continue with the sentencing, and she answered, “Yes.”

Louree recognized that a defendant has the opportunity to withdraw a plea “any time before the imposition of sentence” (8 NY3d at 545-546). After discussing PRS, but before the sentence was actually imposed here, defendant’s counsel asked the trial court a number of questions concerning completion of the plea-in-satisfaction form, counsel requested that a letter written by defendant be made part of the sentencing memorandum, and also requested that the trial court make a recommendation to the Department of Corrections that defendant be designated a special needs inmate. Defendant had ample opportunity to object to the imposition of PRS or to withdraw her plea before the sentence was imposed. Thus, preservation of her Catu argument was required, and defendant did not preserve that argument.

In finding the error unpreserved, I do not wish to suggest any endorsement of the trial judge’s failure to more directly discuss the parameters of the plea and sentence with defendant at the sentencing proceeding. We held in Louree that a trial judge is charged with ensuring that a defendant’s plea is knowing, voluntary and intelligent (8 NY3d at 545-546). It would certainly have been a better practice at sentencing for the trial judge, rather than the prosecutor, to have conducted the questioning.

Nonetheless, the trial judge here clearly stated to the defendant that he intended to impose a five-year period of PRS to defendant’s sentence. The trial judge presided over the colloquy between the prosecutor and defendant, where defendant indicated that she understood PRS, had spoken with counsel about PRS, and stated that she wished to continue with sentencing. Based on that discussion, the trial judge would have no reason to believe that defendant should be offered her plea back or that she intended to withdraw her plea.

Because defendant had ample opportunity to object to the imposition of PRS and to request withdrawal of her plea, she was required to preserve her Catu argument. Therefore, I dissent and would affirm the Appellate Division order.

Judges Graffeo, Read, Pigott and Rivera concur; Judge Abdus-Salaam dissents in an opinion in which Judge Smith concurs.

Order reversed, defendant’s plea vacated and case remitted to County Court, Monroe County, for further proceedings on the indictment.

       The Appellate Division was unanimous in upholding County Court’s suppression ruling.