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

text:
    [927 NE2d 532, 901 NYS2d 112]
    The People of the State of New York, Respondent, v James J. Carncross, Appellant.
    Argued February 11, 2010;
    decided March 25, 2010

      POINTS OF COUNSEL

      Mitchell Goris & Stokes, LLC, Cazenovia (Stewart F. Hancock, Jr., of counsel), and Bianco Law Offices, Syracuse (Randi Juda Bianco of counsel), for appellant.
    I. The proof presented by the prosecution was legally insufficient to establish the required elements of aggravated criminally negligent homicide. The trial court erred, as a matter of law, in denying defendant’s motions to dismiss for legal insufficiency and the Appellate Division erred in failing to reverse the trial court and dismiss that charge. (People v Cabrera, 10 NY3d 370; People v Gray, 86 NY2d 10; People v Badke, 21 Misc 3d 471; People v Haney, 30 NY2d 328; People v Soto, 44 NY2d 683; People v Ricardo B., 73 NY2d 228; People v Loughlin, 76 NY2d 804; People v Maher, 79 NY2d 978; People v Harris, 81 NY2d 850; People v Ladd, 89 NY2d 893.) II. The Appellate Division erred in holding that defendant had failed to preserve the contention that the evidence was legally insufficient to establish that defendant had the requisite mens rea for criminally negligent homicide; in the event that this Court should hold that this issue is being presented for the first time in this Court, this Court can and should hear the issue on the merits. (People v Fermin, 36 AD3d 934; People v Edwards, 95 NY2d 486; People v LaPetina, 34 AD3d 836; People v Duncan, 177 AD2d 187; People v Flores, 124 Misc 2d 478; People v Haney, 30 NY2d 328; People v Kibbe, 35 NY2d 407; People v Le Mieux, 51 NY2d 981; People v Gray, 86 NY2d 10; People v Bynum, 70 NY2d 858.) III. The court erred in granting the People’s motion to disqualify defense counsel and that error deprived appellant of his federal and state constitutional right to counsel of his choice. This constitutional deprivation, without more, mandates reversal and a new trial. (United States v Perez, 325 F3d 115; People v Caban, 123 AD2d 356; United States v Kliti, 156 F3d 150; People v Ortiz, 76 NY2d 652; People v Wandell, 75 NY2d 951; People v Gomberg, 38 NY2d 307; People v Mattison, 67 NY2d 462; People v Stewart, 126 AD2d 943; People v Arroyave, 49 NY2d 264; People v Salcedo, 68 NY2d 130.) IV The trial court erred in failing to dismiss the indictment based on improper expert testimony and misleading grand jury instructions. (People v Loizides, 123 Misc 2d 334; People v Taylor, 150 Misc 2d 91; De Long v County of Erie, 60 NY2d 296; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; People v Santi, 3 NY3d 234; Ortiz v City of New York, 39 AD3d 359; People v McCart, 157 AD2d 194; People v Champion, 247 AD2d 901; People v Huston, 88 NY2d 400; People v Wilkins, 68 NY2d 269.) V. The court’s evidentiary rulings at trial deprived defendant of his right to a fair trial in violation of article I, § 6 of the New York State Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. (Selkowitz v County of Nassau, 45 NY2d 97; People v Goldstein, 6 NY3d 119; People v Peguero-Castillo, 174 AD2d 1026; Olden v Kentucky, 488 US 227; People v De Jesus, 42 NY2d 519; People v Montes, 141 AD2d 767; People v Ortiz, 116 AD2d 531; People v Rivera, 116 AD2d 371; People v Alicea, 37 NY2d 601; People v Steinhardt, 9 NY2d 267.) VI. Defendant’s statement should have been suppressed as his right to counsel under the Fifth and Sixth Amendments to the United States Constitution and article I, § 6 of the New York State Constitution had indelibly attached and his rights were violated when the representation afforded him by counsel in dealing with law enforcement authorities was grossly incompetent. (People v Claudio, 83 NY2d 76; People v Iucci, 61 AD2d 1; United States v Cronic, 466 US 648.) VII. The cumulative effect of the errors deprived defendant of the right to a fair trial. (People v Crimmins, 36 NY2d 230; People v Pyne, 223 AD2d 910; People v Kitchen, 55 AD2d 575.)

      William J. Fitzpatrick, District Attorney, Syracuse (James P Maxwell and Victoria M. White of counsel), for respondent.
    I. The evidence was legally sufficient to support defendant’s conviction of aggravated criminally negligent homicide. (People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Bleakley, 69 NY2d 490; People v Boutin, 75 NY2d 692; People v Haney, 30 NY2d 328; People v Ricardo B., 73 NY2d 228; People v Conway, 6 NY3d 869; People v Cabrera, 10 NY3d 370; People v Paul VS., 75 NY2d 944; People v McGrantham, 12 NY3d 892.) II. The Appellate Division properly held that defendant failed to preserve his contention that the evidence was legally insufficient to establish that defendant possessed the requisite mens rea for criminally negligent homicide. (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56, 678; People v Bynum, 70 NY2d 858; People v Sweeney, 15 AD3d 917, 4 NY3d 891; People v Beige, 41 NY2d 60.) III. The court properly disqualified defense counsel. (People v Gomberg, 38 NY2d 307; People v Tineo, 64 NY2d 531; People v Wandell, 75 NY2d 951; People v Harris, 99 NY2d 202; People v McDonald, 68 NY2d 1; People v Lombardo, 61 NY2d 97; People v Stewart, 126 AD2d 943; Wheat v United States, 486 US 153; United States v Gonzalez-Lopez, 548 US 140; People v Hall, 46 NY2d 873, 444 US 848.) IV The testimony and instructions presented to the grand jury did not impair the integrity of the grand jury or prejudice defendant. (People v Huston, 88 NY2d 400; People v Wooten, 283 AD2d 931, 96 NY2d 943; People v Caracciola, 78 NY2d 1021; People v Darby, 75 NY2d 449; People v Gray, 86 NY2d 10; Mallory v Mallory, 113 Misc 2d 912; People v McCart, 157 AD2d 194, 76 NY2d 861; People v Sims, 178 AD2d 993, 79 NY2d 953; People v DaCosta, 6 NY3d 181; People v Calbud, Inc., 49 NY2d 389.) V County Court’s evidentiary rulings were legal, proper and did not deprive defendant of his right to a fair trial. (People v Gray, 86 NY2d 10; People v LeGrand, 8 NY3d 449; People v Brown, 97 NY2d 500; People v Cronin, 60 NY2d 430; Selkowitz v County of Nassau, 45 NY2d 97; People v Sorge, 301 NY 198; People v Snell, 234 AD2d 986, 89 NY2d 1015; People v McIntyre, 36 NY2d 10; People v Straniero, 17 AD3d 161, 5 NY3d 795; People v Gonzalez, 38 NY2d 208.) VI. County Court did not err in denying suppression of defendant’s statements. (People v Claudio, 83 NY2d 76; People v Steward, 88 NY2d 496; Kirby v Illinois, 406 US 682; People v Stultz, 2 NY3d 277; People v Baldi, 54 NY2d 137; People v Simmons, 167 AD2d 924, 77 NY2d 843; People v Borrell, 12 NY3d 365; People v Turner, 5 NY3d 476; People v Rivera, 71 NY2d 705; People v Droz, 39 NY2d 457.) VII. Defendant received a fair trial. (People v Lucie, 49 AD3d 1253, 10 NY3d 936.)
   OPINION OF THE COURT

Chief Judge Lippman.

In protecting a defendant’s Sixth Amendment rights, a trial court may on occasion properly disqualify the attorney of a defendant’s choosing due to that attorney’s conflicts, actual or potential, even in the face of defendant’s waiver of such conflicts. This is such a case.

In the late afternoon on April 23, 2006, defendant drove away from his home in Onondaga County on his motorcycle. On felony probation at the time, defendant could not own or operate a motor vehicle since he did not have his probation officer’s permission to do so, and he was not licensed to drive a motorcycle in New York State. As defendant traveled west on Route 173 toward Jamesville, New York State Trooper Craig Todeschini observed defendant speeding and began to pursue him. Defendant admitted that when he turned left onto Route 91, he saw the trooper’s vehicle behind him with its emergency lights on, but, rather than pulling over to the side of the road, “took off’ in an attempt to “not get[ ] caught by the trooper.”

Various witnesses observed the motorcycle, followed by the trooper’s vehicle, traveling at a high rate of speed, estimated between 90 and 120 miles per hour, and weaving in and out of traffic along the two-lane country roads. As Trooper Todeschini entered the Hamlet of Pompey Hill, still in pursuit of defendant, he was unable to negotiate a turn in the road, lost control of his vehicle, and collided head-on into a tree, resulting in his immediate death. Three days after the accident, defendant voluntarily appeared at the New York State Police barracks for an interview and, after consulting with his attorney, gave an inculpatory statement.

Defendant was indicted on one count each of reckless driving, aggravated manslaughter in the second degree, and aggravated criminally negligent homicide. A jury acquitted him of the aggravated manslaughter count, but convicted him on the reckless driving and aggravated criminally negligent homicide counts. Defendant was sentenced as a predicate felon to seven years in prison with five years’ postrelease supervision. The Appellate Division affirmed the judgment of conviction (59 AD3d 1112 [2009]). A Judge of this Court granted defendant’s application for leave to appeal from that order (12 NY3d 852 [2009]). We now affirm.

I.

Defendant first argues that the evidence was legally insufficient to support his conviction for aggravated criminally negligent homicide. In particular, defendant claims that there was insufficient evidence to establish that he acted with the requisite mens rea. This claim, however, is unpreserved. After the People rested, and again at the close of all the proof, defendant moved to dismiss the aggravated criminally negligent homicide count, arguing only that the evidence was insufficient to prove a “causal connection” between the defendant’s conduct and the trooper’s death. The court denied both motions. At no point did defendant argue, as he does now, that the evidence failed to establish he acted with the requisite mens rea. As we have previously explained, “where a motion to dismiss for insufficient evidence [is] made, the preservation requirement compels that the argument be ‘specifically directed’ at the alleged error” (People v Gray, 86 NY2d 10, 19 [1995], quoting People v Cona, 49 NY2d 26, 33 n 2 [1979]). Given defendant’s failure to argue with particularity that the evidence was legally insufficient to prove that he acted with the requisite mens rea, we are foreclosed from reviewing that claim here.

Defendant also argues that the evidence is legally insufficient to establish a causal connection between his conduct and the death of the trooper. Although plainly preserved, this argument is without merit.

In People v DaCosta, we explained the law regarding causation in this context:

“To be held criminally responsible for a homicide, a defendant’s conduct must actually contribute to the victim’s death by setting in motion the events that result in the killing. Liability will attach even if the , defendant’s conduct is not the sole cause of death if the actions were a sufficiently direct cause of the ensuing death. More than an obscure or merely probable connection between the conduct and result is required. Rather, an act qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen” (6 NY3d 181, 184 [2006] [internal quotation marks, brackets and citations omitted]).

In that case, we held that the evidence was legally sufficient with respect to causation where a police officer, while chasing the fleeing defendant across a busy expressway, was struck and killed by a vehicle. Similarly, in People v Matos (83 NY2d 509 [1994]), evidence of causation was legally sufficient where a police officer fell down an air shaft to his death in the course of pursuing the fleeing defendant up a ladder and across a roof. These cases establish that where a defendant’s flight naturally induces a police officer to engage in pursuit, and the officer is killed in the course of that pursuit, the causation element of the crime will be satisfied.

Defendant argues that the trooper was negligent by excessively speeding and losing control of his vehicle and violated State Police pursuit policy and Vehicle and Traffic Law § 1104, and that these acts were intervening and unforeseeable causative circumstances. However, it is plain that had defendant not fled, the trooper would not have engaged in the high-speed chase that resulted in his death. Additionally, contrary to defendant’s contention, there is no requirement that a defendant’s vehicle actually make contact with the trooper’s vehicle in order for the causation element to be satisfied. Rather, the essential inquiry is whether defendant’s conduct was a sufficiently direct cause of the trooper’s death, a question we answer in the affirmative. There can be no doubt that defendant’s conduct set in motion the events that led to the trooper’s death, and it was reasonably foreseeable that a fatal accident would occur as a result of defendant leading the trooper on a high-speed pursuit. Accordingly, the evidence was legally sufficient to establish a causal connection between defendant’s conduct and the trooper’s death.

II.

Defendant next argues that County Court erred in granting the People’s motion to disqualify his counsel. When the case was presented to the grand jury, the prosecutor called defendant’s father and girlfriend. One of defendant’s retained attorneys, Mary Gasparini, represented these witnesses and appeared with them in the grand jury room while they gave their testimony. Defendant’s father testified that, on the evening of the accident, defendant returned home after riding his motorcycle and told his father not to let him ride his motorcycle until he was properly licensed because he was nearly pulled over by the police. Defendant also told his father that he had seen flashing lights, yet kept driving. Defendant’s girlfriend testified that he called her shortly after the accident and said he was the motorcyclist the police were looking for and that he thought he was going to jail because the trooper had died. The next day, he called her and told her not to say anything about what he had told her the night before.

After the case had been presented to the grand jury, and four months before trial, the People moved to disqualify Gasparini and her partner, James Meggesto, on the ground that a potential conflict of interest existed based on Gasparini’s representation at the grand jury of defendant’s father and girlfriend who would be prosecution witnesses at trial. Defendant argued that if there was any conflict at all, it was only potential, and the issue could not be determined until after the testimony of the witnesses. Further, the defense argued that any potential conflict was waivable by defendant. Indeed, in open court, defendant indicated he was willing to waive any conflict.

At a subsequent court appearance, the court appointed an independent attorney to advise the defendant with respect to the conflict of interest and its implications. After a discussion with defendant, the independent counsel informed the court that defendant understood the conflict and was willing to waive it, after which defendant waived the conflict on the record. Nevertheless, the court granted the People’s motion, concluding that defense counsel “must be disqualified in order to protect the defendant’s rights to effective assistance of trial counsel and a fair trial free of any conflict of interest.”

Although both defendant’s father and girlfriend were mentioned at jury selection as potential witnesses, in the end neither actually testified. On appeal, the Appellate Division concluded that County Court did not abuse its discretion in granting the People’s motion to disqualify defense counsel. We agree.

When examining a defense counsel’s possible conflict of interest, a court must balance the defendant’s constitutional right to the effective assistance of counsel against the defendant’s right to be defended by counsel of his own choosing (see People v Gomberg, 38 NY2d 307, 312 [1975]). “A lawyer simultaneously representing two clients whose interests actually conflict cannot give either client undivided loyalty” (People v Ortiz, 76 NY2d 652, 656 [1990]), and, in such a case, the constitutional right to effective assistance of counsel may be “substantially impaired” (Gomberg, 38 NY2d at 312). Where there is a question as to a possible conflict, although the court “should not arbitrarily interfere with the attorney-client relationship,” the court “has a duty to protect the right of an accused to effective assistance of counsel” (id. at 313). Thus, when the court is informed of a potential conflict, it must “ascertain, on the record, whether each defendant has an awareness of the potential risks involved in that course and has knowingly chosen it” (id. at 313-314).

In Gomberg, we explained that it is often difficult to assess these conflicts prospectively, before the court is fully aware of “the evidence to be adduced, the strategies to be followed and all defenses that may be plausibly asserted” (id. at 314). Thus, a defendant’s willingness to waive the conflict at an early stage does not end the inquiry. As the Supreme Court has explained, even though there is a “presumption in favor of [the defendant’s] counsel of choice,” that right is not absolute and the court may decline to honor the defendant’s waiver of a conflict:

“Unfortunately for all concerned, a [lower] court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict . . .
“For these reasons we think the [lower] court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses” (Wheat v United States, 486 US 153, 164, 162-163 [1988]).

Here, the trial court had the independent obligation to ensure that defendant’s right to effective representation was not impaired. Although defendant’s father and girlfriend never testified at trial, at the point in the proceedings when the disqualification motion was made, the parties were operating under the assumption that these witnesses might well be called. Specifically, the defense had indicated that it was possible they would proceed with the theory that defendant was not the person who had been driving the motorcycle. The trial court reasonably concluded that, if the defense chose this strategy at trial, it was highly likely that the prosecution would call defendant’s father and girlfriend, who both possessed damaging evidence indicating that defendant had, indeed, been driving the motorcycle. Further, the court properly found that, if these witnesses were called, defense counsel would have been required to cross-examine them. An “attorney’s decision whether and how best to impeach the credibility of a witness to whom he . . . owe[s] a duty of loyalty necessarily placets] the attorney in a very awkward position, where prejudice to defendant need not be precisely delineated but must be presumed” (People v McDonald, 68 NY2d 1, 11 [1986] [internal quotation marks, citation and brackets omitted]). Moreover, had counsel not been disqualified under these circumstances, counsel’s ability to objectively assess the best strategy for defendant to pursue may have been impaired. Defense counsel, obligated to maintain the confidences of the father and the girlfriend, might choose the strategy least likely to cause the prosecution to call them as witnesses, thereby avoiding the need to cross-examine them. It would be difficult to repose confidence in counsel’s single-minded protection of defendant’s interests in these circumstances.

Our dissenting colleagues embrace a seemingly unworkable test in characterizing the conflict here as “more theoretical than real” and “not serious, given the common interest shared by defendant, his girlfriend and his father” (dissenting op at 332). Defendant’s father and girlfriend may well have shared with defendant the desire to see him exonerated and avoid having the prosecutor call them to testify; indeed, that may be why they retained the same lawyers in the first instance. Their identity of interest with defendant would dissolve, however, upon either being called as a witness for the prosecution or, as noted, could have dissolved even earlier if defense counsel opted for a strategy tailored to avoid having to cross-examine them (see People v Wandell, 75 NY2d 951 [1990] [excoriating defense counsel and the prosecutor for failing to advise the trial court of defense counsel’s representation of a prosecution witness in a separate civil action]; see e.g. People v Stewart, 126 AD2d 943 [4th Dept 1987] [concluding that a conflict was presented by counsel’s representation of both a father and a son, and ordering a new trial on ineffective assistance of counsel grounds where, as here, the son made incriminating statements to his father who then provided information against his son to authorities]). More fundamentally, the trial court was tasked with considering this potential conflict without the benefit of hindsight, and the approach taken by the dissent would too narrowly limit the “substantial latitude” (Wheat, 486 US at 163) we all agree the trial court possessed in exercising its discretion under these circumstances.

A review of the record here reveals that the court carefully balanced defendant’s right to counsel of his own choosing against his right to effective assistance of counsel. The court was quite properly reluctant to disqualify counsel, but acted well within the bounds of its discretion in concluding that allowing counsel to continue would “severely undermine [defendant’s] ability to present a cogent defense.” Further, there is no indication that the prosecution’s disqualification request was manufactured in order to gain a tactical advantage (see Wheat, 486 US at 163). We also note that, contrary to defendant’s argument, the court was under no obligation to wait until trial to see if defendant’s father and girlfriend would testify. If the court were required to delay resolution of the motion, and these witnesses were called to testify—which was a possibility even when the trial began—a mistrial would likely have been necessary at that late juncture.

Indeed, the circumstances of this case highlight that trial courts faced with a defendant willing to waive a conflict are often placed in the very difficult position of having their decision challenged regardless of the outcome. As the Supreme Court in Wheat explained, if the court honors the waiver, the defendant can later claim he was denied the effective assistance of counsel (see id. at 161). On the other hand, if the trial court refuses to honor the waiver, a defendant may well raise a challenge like the one presented here (see id.). Of course, the rights that must be balanced—the right to counsel of a criminal defendant’s choosing and the right to effective assistance of counsel free of conflicts—both inure to a defendant’s benefit. At times, however, as here, circumstances are such that the attorney a defendant chooses is also conflicted, in which case these rights may not be enforced in perfect harmony. Thus, as we have observed, a trial court’s “discretion is especially broad when the defendant’s actions with respect to counsel place the court in the dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review” (People v Tineo, 64 NY2d 531, 536 [1985]; see generally People v Konstantinides, 14 NY3d 1 [2009]). We trust that the trial courts, relying on their experience and sound judgment, will carefully evaluate the circumstances presented in such cases and strike an appropriate balance of the relevant interests. Under the circumstances presented here, the court did not abuse its broad discretion in granting the motion to disqualify defendant’s counsel.

III.

Defendant further argues that his statement to the police should be suppressed because his counsel was ineffective in advising him to give the statement. The record reveals that, when defendant voluntarily arrived at the trooper barracks three days after the accident, he was given Miranda warnings. Defendant spoke with troopers for a period of time, but then invoked his right to counsel, at which point the questioning immediately ceased. Defendant’s then attorney, David Savlov, faxed a letter to the barracks indicating he represented defendant, and appeared at the barracks shortly thereafter. After speaking with defendant, Savlov informed the troopers that defendant was willing to speak with them. The troopers again administered Miranda warnings to defendant, who subsequently gave a statement implicating himself in the motorcycle chase.

County Court denied defendant’s motion to suppress the statement, and the Appellate Division affirmed, holding that “suppression was not required inasmuch as defendant received meaningful representation” (59 AD3d at 1114 [citation omitted]).

Even assuming, without deciding, the right to effective assistance of counsel attached prior to defendant’s inculpatory statement and that suppression is the appropriate remedy where a statement is given as the result of ineffective assistance of counsel (see People v Claudio, 83 NY2d 76 [1993]), defendant here has failed to establish that he received ineffective assistance. In determining whether a defendant has been deprived of effective assistance of counsel, we must examine whether “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]). “[A]ll of the evidence must be weighed in context and as of the time of representation to assess the alleged deficient representation” (People v Hobot, 84 NY2d 1021, 1022 [1995]). Although rare, a single, substantial error by counsel may “so seriously compromise[ ] a defendant’s right to a fair trial [that] it will qualify as ineffective representation” (id.). Only where the single error is sufficiently “egregious and prejudicial” will counsel be deemed ineffective (People v Caban, 5 NY3d 143, 152 [2005]).

The record reveals that, after arriving at the police barracks, Savlov was told by representatives of the District Attorney’s Office that the District Attorney would look favorably upon defendant if he voluntarily gave a statement. Further, Savlov “was also told that the police had received information that the defendant was in fact the person being sought [and] . . . the names of other persons who had spoken to the defendant.” Thus, this case is distinguishable from Claudio (83 NY2d at 78), in which we noted that defendant’s counsel was grossly incompetent for advising defendant to give a statement despite that the police had indicated they had insufficient evidence against defendant and the prosecutor had informed the attorney that no plea bargain would be offered. Here, Savlov made the strategic decision to encourage defendant to cooperate in order to receive favorable treatment once charges were brought. Under all the relevant circumstances, we cannot say that defendant received less than meaningful representation.

IV

We have considered defendant’s other challenges to his conviction and find them to be without merit.

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

Pigott, J. (dissenting).

Because, in my view, County Court committed reversible error in disqualifying defendant’s counsel, I respectfully dissent. The court disqualified counsel based upon its finding that a potential conflict of interest—which was more theoretical than real—would, in its opinion, infringe upon defendant’s right to the effective assistance of trial counsel.

It is hornbook law that, the right to counsel being a fundamental one, courts must “carefully scrutinize[ ]” the “judicial restriction or governmental intrusion” upon its exercise (People v Tineo, 64 NY2d 531, 536 [1985]). While a trial court should be accorded “substantial latitude” in refusing a defendant’s waiver of even a potential conflict (Wheat v United States, 486 US 153, 163 [1988]), it is evident from this record that any potential conflict (which never came to fruition) was simply not serious, given the common interest shared by defendant, his girlfriend and his father.

When the court questioned defendant about his waiver, he remained steadfast that he wished to waive any potential conflict. The court then appointed an experienced criminal lawyer as independent counsel to meet with defendant to explain the ramifications of this choice. She met with defendant twice and sent him a letter explaining his rights, including the risks and benefits of waiving the conflict. That attorney reported to the court that it was her view that defendant understood the risks of waiving the conflict and still wished to do so. Notwithstanding these facts, County Court disqualified counsel. What is remarkable here is that no one seems to have had an objection to defendant retaining his counsel other than his adversary and the court.

An element of a defendant’s federal and state constitutional right to counsel (US Const 6th Amend; NY Const, art I, § 6) “is the right of [the] defendant who does not require appointed counsel to choose who will represent him” (United States v Gonzalez-Lopez, 548 US 140, 144 [2006]; see People v Arroyave, 49 NY2d 264, 270 [1980]). When a defendant is wrongly deprived of that right, the deprivation is “complete” at the time the defendant is erroneously prohibited from being represented by the counsel of his choice, and such error is considered a “structural” one not subject to harmless error analysis (Gonzalez-Lopez at 148, 150).

In support of its holding here, the majority relies on People v Ortiz (76 NY2d 652 [1990]) and People v Gomberg (38 NY2d 307 [1975]), both of which are “multiple representation” cases. The former case involved a garden-variety drug trial where defense counsel’s loyalties were divided between the defendant he was representing and a testifying witness whose interests diverged from those of the defendant; the latter case involved a situation where the same attorney represented three defendants who were on trial for arson, and the defense asserted by one of the defendants allegedly shifted the blame to the other defendants. Of course, as the United States Supreme Court has recognized, “multiple representation of criminal defendants engenders special dangers of which a court must be aware” (Wheat, 486 US at 159). But that is not the situation we are presented with here, where neither defendant’s father nor his girlfriend was facing a criminal charge, nor were they targets of the investigation.

The Supreme Court has recognized “a presumption in favor of [a defendant’s] counsel of choice” which may be overcome by either a showing of actual conflict or “a serious potential for conflict” (Wheat, 486 US at 164). It is undisputed in this instance that, at most, there was a potential conflict because defendant’s interests might have placed defense counsel under inconsistent duties in the future had defendant’s father and girlfriend been called as witnesses at trial (United States v Perez, 325 F3d 115, 125 [2d Cir 2003], citing United States v Kliti, 156 F3d 150, 153 n 3 [2d Cir 1998]). But such a conflict, waivable so long as the court is satisfied that it is knowing and intelligent (Perez, 325 F3d at 125), could hardly be considered serious, and clearly not enough to overcome the presumption in favor of affording defendant his constitutional right to counsel of his own choosing.

The majority and the People latch onto the premise that, at the time of the disqualification motion, it was the defense’s theory of the case that defendant was not the operator of the motorcycle, and that the “damaging” testimony by defendant’s father and girlfriend before the grand jury all but ensured that they would be called as witnesses. However, the defense advised the court that, without discovery, it had yet to determine its trial strategy. Moreover, a simple reading of the grand jury testimony of defendant’s father and girlfriend, who were not called to testify before the second grand jury, indicates that their testimony was not substantially different from the statement defendant made to the police just three days after the crash. If anything, the testimony of defendant’s father and girlfriend was no more damaging than defendant’s own statement to the police which, upon a fair reading, rendered it unlikely that defendant would be pursuing a “mistaken identity” defense as the court surmised in its decision and order disqualifying defense counsel.

In matters where there is an apparent conflict, the trial courts have a duty to protect a defendant’s right to the effective assistance of counsel without concomitantly “arbitrarily interfering] with the attorney-client relationship” (Gomberg, 38 NY2d at 313). Where, as here, the potential conflict is theoretical at best because the witnesses are united with the defendant and the defendant has been adequately apprised of the risks of waiving any potential conflict and agrees to do so, the defendant should not be deprived of his fundamental right to counsel of his own choosing. Absent any institutional concerns, such as where the attorney’s representation would jeopardize the integrity of the judicial proceedings, courts should not “assume too paternalistic an attitude in protecting the defendant from himself” (Perez, 325 F3d at 126, quoting United States v Curcio, 694 F2d 14, 25 [2d Cir 1982]).

There being no indication that allowing disqualified counsel to represent defendant in these circumstances would jeopardize the integrity of the proceedings, I would reverse the order of the Appellate Division and grant defendant a new trial with counsel of his choosing.

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

Order affirmed.

       The second grand jury proceeding occurred in September 2006 after disqualification of defense counsel, the indictment from the first grand jury proceeding having been dismissed due to the alleged conflict.


source: Caselaw Access Project

author: Graffeo, J.

license: Public Domain

text:
    [928 NE2d 388, 902 NYS2d 6]
    The People of the State of New York, Respondent, v Mazin Assi, Appellant.
    Argued February 10, 2010;
    decided March 30, 2010

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Jan Hoth and Robert S. Dean of counsel), for appellant.
    I. The evidence was insufficient to establish appellant’s guilt of attempted arson and criminal mischief in the third degree as hate crimes, where the Hate Crimes Act did not take effect until two days after the incident occurred. (Matter of Wolkoff v Chassin, 89 NY2d 250; People v Buckley, 75 NY2d 843; Southbridge Finishing Co. v Golding, 2 AD2d 430; People v Powell, 179 Misc 2d 1047.) II. The evidence of attempted arson and criminal mischief in the third degree as hate crimes was insufficient where no evidence was presented that appellant’s conduct was directed at a person as required by the Hate Crimes Act. (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475; Wisconsin v Mitchell, 508 US 476; People v Mahboubian, 74 NY2d 174; Strickland v Washington, 466 US 668; People v Turner, 5 NY3d 476; Flores v Demskie, 215 F3d 293.) III. The trial court erred in finding no prima facie case of discrimination by the prosecutor in jury selection as young adults are a cognizable group and the prosecutor had challenged all six of the young adult prospective jurors. (Batson v Kentucky, 476 US 79; People v Kern, 75 NY2d 638; J. E. B. v Alabama ex rel. T. B., 511 US 127; Miller-El v Dretke, 545 US 231; People v Allen, 86 NY2d 101; People v Payne, 88 NY2d 172; Kimel v Florida Bd. of Regents, 528 US 62; Castaneda v Partida, 430 US 482; People v Rodriguez, 211 AD2d 275; Hamling v United States, 418 US 87.)

      Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), for respondent.
    I. The hate crimes legislation was in effect when appellant firebombed the synagogue. (People v Hansen, 99 NY2d 339; People v Buckley, 75 NY2d 843; People v Loret, 136 AD2d 316; People v Powell, 179 Misc 2d 1047; People v Knobel, 94 NY2d 226; People v Ortega, 69 NY2d 763; Shields v Benderson Dev. Co., 76 Misc 2d 322; Matter of Conway v Board of Educ. of Cent. School Dist. No. 1, 47 Misc 2d 172; Stella v Farley Assn., Inc., 204 Misc 998, 284 App Div 873; Matter of Fay v Boyland, 18 Misc 2d 150.) II. The Hate Crimes Act applies to crimes directed at the synagogue. (People v Ivanov, 23 Misc 3d 1129[A], 2008 NY Slip Op 52683[U]; People v Olivo, 52 NY2d 309; People v Foster, 64 NY2d 1144; People v Alvarez, 51 AD3d 167; People v Caban, 5 NY3d 143.) III. Since people aged 18 to 23 are not a protected class for purposes of the Equal Protection Clause, Justice Barrett properly denied appellant’s Batson challenge to two of the prosecutor’s peremptory challenges. (Batson v Kentucky, 476 US 79; Gregory v Ashcroft, 501 US 452; Kimel v Florida Bd. of Regents, 528 US 62; Maresca v Cuomo, 64 NY2d 242, 474 US 802; Johnson v McCaughtry, 92 F3d 585, 519 US 1034; Duren v Missouri, 439 US 357; People v Lebron, 294 AD2d 105; People v Huggins, 292 AD2d 543; Hamling v United States, 418 US 87; People v Guzman, 60 NY2d 403.)

      Chadbourne & Parke LLP, Washington, D.C. (David M. Raim, Philip J. Goodman and Kate McSweeny of counsel), Deborah R. Cohen, New York City, Steven M. Freeman, Robert O. Trestan and Michael Lieberman for Anti-Defamation League, amicus curiae.
    I. Applying the Hate Crimes Act to bias-motivated property crimes comports with sound public policy. (People v Diaz, 188 Misc 2d 341.) II. The unambiguous wording of Penal Law § 485.05 allows specified bias-motivated property crimes to be charged as hate crimes. (Pardi v Barone, 257 AD2d 42; State of New York v Patricia II., 6 NY3d 160; People v Rice, 44 AD 3d 247; People v Santi, 3 NY3d 234; Matter of Albano v Kirby, 36 NY2d 526; People v Diaz, 188 Misc 2d 341; Matter of Daniel K,
      89 AD2d 630; People v Mu-Min, 172 AD2d 1022; People v Woodard, 148 AD2d 997.) III. The legislative record reflects the Legislature’s clear intention to make certain property crimes subject to the Hate Crimes Act. (Matter of City of New York v State of New York, 282 AD2d 134; Riley v County of Broome, 95 NY2d 455; Woollcott v Shubert, 217 NY 212; People v Rice, 44 AD3d 247; Matter of W.L. Maxson Corp. v Ralph, 182 Misc 144, 268 App Div 753, 294 NY 880; Wisconsin v Mitchell, 508 US 476; People v Urbaez, 10 NY3d 773; People v Eboli, 34 NY2d 281; People v Robinson, 95 NY2d 179; People v Walsh, 67 NY2d 747.)
   OPINION OF THE COURT

Graffeo, J.

This case requires us to determine when the Hate Crimes Act of 2000 (L 2000, ch 107) took effect and whether it applies to certain property crimes, such as an attempted arson at a Jewish synagogue.

The term “hate crimes” refers to criminal acts against “victims [who] are intentionally selected, in whole or in part, because of their race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation” (Penal Law § 485.00). The rise in the occurrence of these types of offenses led to a legislative determination that existing criminal statutes did “not adequately recognize the harm to public order and individual safety that hate crimes cause” (id.). As a result, the Legislature passed the Hate Crimes Act in 2000 (L 2000, ch 107), emphasizing that hate crimes “inflict on victims incalculable physical and emotional damage and tear at the very fabric of free society . . . [by] send[ing] a powerful message of intolerance and discrimination to all members of the group to which the victim belongs” (Penal Law § 485.00). The Act requires enhanced sentences for dozens of specified offenses committed under circumstances that satisfy the definition of hate crimes (see Penal Law §§ 485.05, 485.10). Chapter 107 was to take effect 90 days after it was enacted (see L 2000, ch 107, § 9), which meant that Penal Law article 485 was scheduled to take effect on October 8, 2000.

At approximately 3:00 a.m. on that day, New York City police officers saw a red Honda parked on a service road near the Henry Hudson Parkway. The car was about 250 feet away from the synagogue of the Conservative Congregation Adath Israel of River dale. Shortly after the officers noticed the Honda, the vehicle departed but returned a short time later and dropped off three passengers who walked toward the synagogue. After about 10 minutes, the officers observed the passengers walking away from the synagogue. The officers did not approach them, however, because there was nothing to indicate they had committed any crime.

Several hours later, a congregant arrived at the synagogue to find that the front door glass panel had been shattered. The police discovered a broken bottle of vodka on the ground, along with several rocks, purple-stained latex gloves, and another bottle containing a purple liquid. Both bottles were plugged with charred wicks and had been fashioned into “Molotov cocktails.”

Eventually, the police determined the identity of the individuals who had been near the synagogue that evening, resulting in defendant and the driver of the Honda being arrested. A search of the automobile uncovered latex gloves and a towel that had been torn to make a Molotov cocktail wick. Defendant waived his Miranda rights and admitted that he had participated in the attempted arson of the synagogue because he was angry that a Palestinian child had been shot by the Israeli army. Using an expletive to refer to the congregants of the synagogue, defendant stated that the “rich Jews in Riverdale send money over there and they buy guns and they are killing people.” The attempted arson, defendant explained, was intended to “make a statement” that would “stop the violence in the Middle East.” Defendant then gave a detailed account of what he and two acquaintances had attempted to do at the synagogue and he later repeated his confession on videotape.

Defendant and the driver were indicted as codefendants for numerous offenses, including two counts of attempted arson in the third degree as hate crimes and two counts of criminal mischief in the third degree as hate crimes. Following jury selection, defense counsel moved to dismiss the hate crime charges, arguing that defendants’ conduct occurred before the effective date of the Hate Crimes Act. Defense counsel contended that although the Legislature specified that the law would take effect 90 days after it was enacted (i.e., October 8, 2000), that date fell on a Sunday and the following Monday was a public holiday; the effective date of the Act was therefore postponed under General Construction Law §§ 20 and 25-a until Tuesday, October 10, 2000—two days after the incident at the synagogue. An argument was also presented that the Hate Crimes Act did not apply to property crimes, such as those defendants were charged with. Supreme Court rejected both arguments, concluding that the General Construction Law statutes were inapplicable and that Penal Law § 485.05 applied to an arson that was motivated by religious hatred.

Defendant was subsequently convicted of several offenses, including attempted arson in the third degree and criminal mischief in the third degree as hate crimes. He was sentenced to an aggregate term of imprisonment of 5 to 15 years. The Appellate Division affirmed (63 AD3d 19 [1st Dept 2009]) and a Judge of this Court granted leave to appeal (12 NY3d 912 [2009]).

Defendant claims that his hate crimes convictions should be reversed because article 485 of the Penal Law applies only to crimes against persons, not property, and that the attempted arson of a building, such as a synagogue, cannot qualify as a hate crime. In our view, this argument is inconsistent with both the text of the relevant statutes and the legislative intent of the Hate Crimes Act.

A hate crime can be committed in two different ways. First, by intentionally selecting the “person” who will be the victim of the crime “in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct,” and committing a specified offense (Penal Law § 485.05 [1] [a]). Second, by intentionally committing a specified offense “in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct” (Penal Law § 485.05 [1] [b]).

Defendant believes that the statutory reference to “person” restricts the statute’s reach to crimes against individuals. The Penal Law, however, defines “person” to mean “a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality” (Penal Law § 10.00 [7]). The congregation that owned the synagogue would fall under the category of an association of individuals or a religious corporation, and therefore, it qualified as a “person” within the meaning of Penal Law § 10.00 (7).

In addition to this technical definition, subdivision (1) (b) of section 485.05 broadly applies to specified offenses—including property crimes such as trespass, burglary, arson and grand larceny (see Penal Law § 485.05 [3])—that are motivated by a belief or perception of another person’s religion. Consequently, the attempted arson of a house of worship that is motivated by religious animus is covered by Penal Law § 485.05 (1) (b) (see Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 485.00, at 284 [noting that an example of a hate crime under subdivision (1) (b) “would be a perpetrator who, professing hatred against a particular religion, sets off a bomb in that religion’s place of worship”]). As the Appellate Division noted, it is self-evident that, although the target of defendant’s criminal conduct was a building, the true victims were the individuals of Jewish faith who were members of the synagogue.

The history of the Hate Crimes Act confirms this conclusion. The legislative findings set forth in section 485.00 indicate that criminal acts involving the “destruction of property” can qualify as hate crimes. Similarly, New York City’s memorandum in support of the bill specifically referred to the defacement of a synagogue or the desecration of a religious statue as examples of hate crimes (see Mem of Mayor of New York City, Bill Jacket, L 2000, ch 107, at 12). Other documents in the Bill Jacket similarly commented that a prime purpose of the legislation was to address the growing problem of bias-related property destruction (see Budget Rep on Bills, Bill Jacket, L 2000, ch 107, at 3; see also Mem of Attorney General, Bill Jacket, L 2000, ch 107, at 5).

For these reasons, we reject defendant’s contention that religiously-motivated property crimes do not fall within the ambit of Penal Law article 485. The evidence in this case proved that defendant committed an attempted arson of the synagogue because of his anger toward a particular religious group. As defendant’s conduct fit within the scope of the Hate Crimes Act, the motion to dismiss was properly denied.

Defendant also maintains that he could not be convicted of hate crimes because his conduct occurred prior to the effective date of the Hate Crimes Act. According to defendant, General Construction Law §§ 20 and 25-a direct that new laws that become operational on a weekend or a public holiday are to become effective one day later. Hence, defendant asserts that the Hate Crimes Act went into effect on Tuesday, October 10, 2000, because its specified effective date, October 8th, was a Sunday and October 9th was Columbus Day. We disagree.

Under the common law, new laws took effect immediately upon their passage unless some other date was set forth in the legislation (see e.g. Matthews v Zane, 7 Wheat [20 US] 164, 211 [1822]; Real v People, 42 NY 270, 276 [1870]). The reasonableness of this rule was questioned in certain situations because it was “impossible in any state, and particularly in such a widespread dominion as that of the United States, to have notice of the existence of the law, until some time after it has passed” (1 Kent, Commentaries on American Law, at 458 [12th ed]). Nevertheless, the common-law rule was “deemed to be fixed beyond the power of judicial control” in the absence of a legislative declaration that a new law would take effect at some other time (id.).

The Legislature altered this common-law principle in 1829 (see 1 Rev Stat of NY, part I, ch VII, tit IV[ § 12 [1st ed 1829]). That statute provided that “[e]very law, unless a different time shall be prescribed therein, shall commence and take effect, throughout the state, on and not before the twentieth day after the day of its final passage, as certified by the secretary of state” (id. [emphasis added]). The 20-day rule is now found in Legislative Law § 43.

Section 43 and its common-law antecedent compel us to reject defendant’s argument that the effective date of the Hate Crimes Act was delayed for two days beyond the date selected by the Legislature. The Legislature is authorized to prescribe an effective date of its choosing and we are aware of no limitation on its prerogative (see e.g. McKinney’s Cons Laws of NY, Book 1, Statutes § 41 [“The Legislature has the right and duty to determine when an act is to take effect”]). Contrary to defendant’s contention, General Construction Law §§ 20 and 25-a (l) do not negate this principle. Section 25-a specifies that when “an act is authorized or required to be done” within a certain period of time and the last day of the period falls on a weekend or public holiday, the time period is extended to the following business day. This provision applies to situations that involve the calculation of a deadline, such as the filing of legal papers or other documents. In these circumstances, the deadline will be extended if it falls on a weekend or holiday when the courts or government offices are closed for business. Similarly, General Construction Law § 20 simply provides a method for extending a two-day period to act if the period includes a weekend or a holiday. Neither statute has any bearing on this case because they do not alter the Legislature’s exclusive power to determine when its legislation will become effective.

We therefore agree with the courts below that Penal Law article 485 became effective on Sunday, October 8, 2000. Because defendant’s criminal conduct occurred several hours after the new statute took effect, he was properly arrested, prosecuted and sentenced under the Hate Crimes Act.

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

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

Order affirmed.

      . The driver was convicted of criminal mischief in the third degree and sentenced to l ⅓ to 4 years’ imprisonment.

      . “A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made. If such period is a period of two days, Saturday, Sunday or a public holiday must be excluded from the reckoning if it is an intervening day between the day from which the reckoning is made and the last day of the period. In computing any specified period of time from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning.”

      . “When any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day.”

      . Defendant’s remaining contention regarding jury selection lacks merit.


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

text:
    [927 NE2d 1042, 901 NYS2d 558]
    Sidney Hirschfeld, Director, Mental Hygiene Legal Service, Second Judicial Department, Appellant, v Mitchell Teller, as Administrator of Woodmere Rehabilitation and Health Care Center, Inc., et al., Respondents.
    Argued February 9, 2010;
    decided March 30, 2010

      POINTS OF COUNSEL

      Mental Hygiene Legal Service, Second Judicial Department, Mineola (Lisa Volpe, Sidney Hirschfeld and Dennis B. Feld of counsel), for appellant.
    I. Mental Hygiene Legal Service’s statutory mandate to provide legal representation and advocacy for individuals with mental illness extends to such individuals residing in places or facilities that may not possess operating certificates issued by the State Office of Mental Health, but nevertheless fall under the Mental Hygiene Law licensing statute and its corresponding regulations. (Cohen v Lord, Day & Lord, 75 NY2d 95; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Brad H. v City of New York, 185 Misc 2d 420, 276 AD2d 440.) II. The lower courts incorrectly defined Mental Hygiene Legal Service’s mandate within the context of the State Office of Mental Heath’s decision-making function. (Besunder v Coughlin, 102 Misc 2d 41; Brown v Lavine, 78 Misc 2d 1085; Matter of Mental Hygiene Legal Serv. v Maul, 36 AD3d 1133; Matter of Myerson v Schechter, 25 Misc 2d 291; Matter of Board of Educ. of Glen Cove City School Dist. v O’Shea, 304 AD2d 662; Matter of Over hill Bldg. Co. v Delany, 28 NY2d 449; Flaherty v McCall, 262 AD2d 890; Gilberg v Barbieri, 53 NY2d 285; Comi v Breslin & Breslin, 257 AD2d 754; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Brad H. v City of New York, 185 Misc 2d 420, 276 AD2d 440.) III. Respondent nursing homes fall within the licensing statute of Mental Hygiene Law article 31 and its corresponding regulations, based on the characteristics of the facilities themselves, the residents with primary diagnoses of mental illness whom they serve, and the services they provide to those residents. IV Public policy considerations support the conclusion that Mental Hygiene Legal Service must be permitted to provide the same independent oversight and advocacy to individuals with primary diagnoses of mental illness currently residing in respondent nursing homes as the agency provides to others with mental illness residing in Office of Mental Health-operated or licensed facilities. (Matter of Julio R., 16 AD3d 423; Matter of Francine T., 302 AD2d 533; Matter of Seltzer v Hogue, 187 AD2d 230.)

      Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, Lake Success (Sarah C. Lichtenstein of counsel), for respondents.
    I. Mental Hygiene Legal Service jurisdiction is limited by statute to places required to have an Office of Mental Health operating certificate. (Joseph S. v Hogan, 561 F Supp 2d 280.) II. The responsible state agencies have determined that the nursing homes are not required to obtain Office of Mental Health operating certificates, and those decisions are dispositive. (Matter of Natural Resources Defense Council v New York City Dept. of Sanitation, 83 NY2d 215; Matter of Albert F. v Stone, 169 Misc 2d 838; Brad H. v City of New York, 185 Misc 2d 420, 276 AD2d 440; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Flaherty v McCall, 262 AD2d 890; Matter of Ferrelli v Long Is. Coll. Hosp. School of Nursing, 204 AD2d 544; Keith v New York State Teachers ’ Retirement Sys., 46 AD2d 938; Lade v Levitt, 33 AD2d 956; Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147; United States v Western Pacific R. Co., 352 US 59.) III. The larger statutory scheme confirms that the nursing homes are not required to obtain Office of Mental Health operating certificates. (Pajak v Pajak, 56 NY2d 394; Matter of Town of Riverhead v New York State Bd. of Real Prop. Servs., 5 NY3d 36; Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94; Festinger v Edrich, 32 AD3d 412; Matter of Subpoena Duces Tecum to Jane Doe, 293 AD2d 231, 99 NY2d 434.) IV The federally mandated regulatory process for discharging persons from psychiatric facilities to nursing homes confirms that residents in the nursing homes are not being treated for mental disability. V Policy considerations concerning the rights of nursing home residents confirm that Mental Hygiene Legal Service should not be given unfettered access to certain residents and their medical records.
   OPINION OF THE COURT

Pigott, J.

Beginning as early as 1996, defendants, certain nursing homes in New York State, began accepting as residents patients discharged from facilities licensed by the Office of Mental Health (OMH). The patients were primarily from New York State psychiatric hospitals with diagnoses of mental illness. All but one of defendant nursing homes placed the patients in discrete units of the residence, referred to as “neurobiological units” (NBUs), where the residents received psychiatric and psychosocial rehabilitative services. Defendant nursing homes operate under licensing by the Department of Health but have never sought, nor obtained, licenses from OMH.

In October 2002, a series of related articles began appearing in the New York Times focusing on the NBUs and claiming that NBU residents were being deprived of legal protections afforded to patients committed to psychiatric wards, including the right to a lawyer. Upon learning of the articles, Mental Hygiene Legal Service (MHLS) conducted an investigation and thereafter sought access to NBU residents and their records in order to provide advocacy and legal representation to those who might be in need of such services. Defendant nursing homes denied MHLS such access.

Thereafter, in June 2003, plaintiff Sidney Hirschfeld, Director of MHLS (hereinafter MHLS), commenced this action against defendant nursing homes alleging that because the nursing homes are providing services for mentally disabled residents, MHLS has a right of access to such residents. MHLS sought judgment declaring that it has the right of access at any and all times to the residents and their records and also sought an injunction enjoining defendant nursing homes from denying MHLS such access.

Defendant nursing homes answered arguing, among other things, that because MHLS has jurisdiction only over facilities required to obtain operating certificates and OMH has determined that the nursing homes are not required to have one, MHLS was without authority to access the residents.

At some point during the litigation, defendant nursing homes shut down the NBUs. Thus, defendant nursing homes no longer maintain discrete units in which the NBU patients reside.

After motion practice not relevant here and significant discovery, both parties moved for summary judgment. Supreme Court granted defendant nursing homes’ motion and dismissed the complaint (2006 NY Slip Op 30608[U]). The Appellate Division modified Supreme Court’s order by remitting the matter to Supreme Court for, among other things, entry of a judgment declaring that MHLS does not have the right of access to the mentally ill residents of NBUs of defendant nursing homes (Hirschfeld v Teller, 50 AD3d 855 [2008]).

This Court granted MHLS leave to appeal (12 NY3d 707 [2009]). We now affirm.

MHLS is statutorily mandated to provide legal services and assistance to individuals with mental disabilities. Such mandate is delineated in Mental Hygiene Law § 47.01 (a), which provides, in relevant part:

“There shall be a mental hygiene legal service of the state in each judicial department. The service shall provide legal assistance to patients or residents of a facility as defined in section 1.03 of this chapter, or any other place or facility which is required to have an operating certificate pursuant to article sixteen or thirty-one of this chapter, and to persons alleged to be in need of care and treatment in such facilities or places, and to persons entitled to such legal assistance as provided by article ten of this chapter.”

Thus, by statute, MHLS’s jurisdiction is limited to two categories of facilities: (1) facilities defined in Mental Hygiene Law § 1.03 and (2) other places that are required to have an OMH operating certificate. MHLS claims that defendant nursing homes fall within the designation “any other place or facility which is required to have an operating certificate pursuant to . . . [article 31 of the Mental Hygiene Law].” Article 31 of the Mental Hygiene Law vests OMH with the exclusive authority to issue operating certificates to facilities providing services to the mentally disabled. But not every facility that treats the mentally disabled requires an operating certificate from OMH. 14 NYCRR part 70 “establish[es] an all-inclusive set of categories, named classes, to which all providers of services to the mentally disabled subject to the requirement to obtain an operating certificate” will be assigned (14 NYCRR 70.1 [a]). The Commissioner determines if a provider is subject to OMH licensure on the basis of three factors: “characteristics of the persons served, characteristics of the services provided, and the auspices of the provider of services” (14 NYCRR 70.1 [b]).

In support of their motion to dismiss the complaint, defendant nursing homes submit the deposition testimony of OMH’s Director of Inspection and Certification that OMH did not have jurisdiction over defendant nursing homes and, as a result, OMH did not exercise any licensing jurisdiction. This decision was based, in part, on a site report prepared by OMH’s field office.

In opposition, MHLS does not challenge OMH’s authority to make a licensing determination, nor does it challenge OMH’s decision not to license defendant nursing homes. MHLS claims OMH’s decision not to require an operating certificate is of no import. Rather, MHLS argues that the dispositive issue is whether the facilities themselves are subject to licensing because they provide residential services to the mentally disabled.

But precisely which facilities are, in fact, subject to OMH licensure is a matter committed, in the first instance, to the Commissioner’s discretion and expertise. Here, OMH decided that licensure was not required. Because only OMH is authorized to determine whether a facility is required to have an operating certificate and MHLS’s jurisdiction is expressly limited to licensed facilities, MHLS has failed to raise an issue of fact. Thus, defendant nursing homes are entitled to summary judgment dismissing the complaint.

Finally, we express no opinion as to the correctness of OMH’s decision underlying this case. The proper way to challenge any OMH licensure determination, however, is via a CPLR article 78 proceeding. At that time, OMH would be a party to the proceedings, allowing courts to review its determination on the full administrative record.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Lippman. (dissenting).

In 1993, Mental Hygiene Law § 47.01 (a) was amended with the express objective of extending the jurisdiction of the Mental Hygiene Legal Service (MHLS), the state agency legislatively assigned to act as counsel and advocate for the mentally disabled. That jurisdiction, formerly textually limited to persons in “hospitals, schools or alcoholism facilities,” or alleged to be in need of care in such institutions, was, pursuant to the amendment, significantly expanded to embrace a range of other in- and outpatient facilities, including community residences, group homes, intermediate care homes and family homes. It was the intent of the legislation’s sponsors that the amendment, passed by unanimous vote of both houses of the Legislature, “would provide MHLS with the means to represent individuals without first having to establish jurisdiction because of their residence” (Senate Introducer Mem in Support, Bill Jacket, L 1993, ch 330, at 5). The need for the amendment, introduced at the request of the Administrative Board of the Courts, was explained at the time by Counsel to the Office of Court Administration, whose comments in support of the amendment (Bill Jacket, L 1993, ch 330, at 11-12) bear lengthy repetition here:

“Confusion arises . . . with respect to MHLS services to persons in community residences, group homes, intermediate care homes and family care homes, all of which are places where services are rendered to patients with or without [the] benefit of a Mental Hygiene Law legal admission status. Currently there are more than 29,000 such patients; and they are in as much need of MHLS protective services, advice and assistance as persons who reside in hospitals and schools.
“In actual practice, MHLS has considerable responsibilities towards these classes of patients. Without regard to type of facility or a person’s lack of legal admission status therein, MHLS is involved in matters including but not limited to: applications for judicial authorization for medical treatment; surrogate decision making for medical treatment; transfers of patients; discharge planning; confidentiality and access to records; investigations of patient abuse; proceedings for appointments of conservators, committees and guardians; recommitment of forensic patients; restraint and seclusion; forced medication; assurance of quality care and protection of patients’ rights in general; interstate transfer; and objections to treatment . . .
“While most mental health professionals recognize the value of the services provided by MHLS to persons not having legal status, a few dispute their authority to do so. In those instances, MHLS must first do battle to establish a jurisdictional foothold. Sometimes this may require litigation, which may be protracted and which may yield inconsistent results. The effect is that time will be lost and precious resources diverted away from the real needs of a class of persons who may truly require assistance.”

This action seeking, among other relief, a declaration that MHLS is entitled to access to defendant nursing homes and the residents of those homes admitted for and being treated for psychiatric disorders was commenced by plaintiff Hirschfeld, the Director of MHLS in the Second Judicial Department, in June 2003. During the year prior, there appeared a Pulitzer Prize winning series of investigative newspaper reports focusing on the treatment of mentally disabled adults in state regulated facilities. One of the articles in this series, titled Mentally III and Locked Up in New York Nursing Homes, detailed what had evidently become a fairly widespread practice, if not a policy, countenanced, if not actively promoted, by the State, of discharging psychiatric patients from state psychiatric hospitals to discrete nursing home units, referred to as “neurobiological units” (NBUs), where they continued to receive psychiatric treatment in highly restrictive settings. The NBU placements were, according to the article, tantamount to involuntary psychiatric commitments without any provision for protection of the committees’ liberty interests and rights to due process; whereas the legal rights of the affected individuals had been protected while they remained institutionalized in the Office of Mental Health (OMH) facilities pursuant to statutes providing, inter alia, for judicial review of involuntary commitments and for legal representation in matters pertaining to patients’ liberty interests, the NBUs into which they had been discharged were not licensed by OMH and their residents were shorn of the legal protections they had had as patients in OMH licensed facilities.

After learning of the NBUs’ existence in the public press, MHLS, in a letter signed by each of its directors, requested that defendant nursing homes afford its attorneys access to the NBUs and their residents. Counsel for the nursing homes, however, responded denying access upon the ground that the nursing homes were not OMH licensed facilities and did not fall within MHLS’s jurisdiction.

Now, seven years later, MHLS is still without access to the mentally disabled residents of defendant nursing homes. That this should be so notwithstanding the 1993 enactment that was supposed to have settled the issue and to have obviated the need for the agency to engage in lengthy and costly litigation “to establish a jurisdictional foothold” in such facilities, is a most regrettable and unnecessary state of affairs, now justified upon an interpretation of the agency’s jurisdictional statute (Mental Hygiene Law § 47.01 [a]) that is textually incorrect and plainly at odds with the purposes informing its enactment; it is, moreover, a reading that confuses judicial and administrative prerogatives with potentially devastating consequences for the representational rights and liberty interests of an acutely needy client population.

Mental Hygiene Law § 47.01 (a) states, in part:

“The service shall provide legal assistance to patients or residents of a facility as defined in section 1.03[] of this chapter, or any other place or facility which is required to have an operating certificate pursuant to article . . . thirty-one of this chapter, and to persons alleged to be in need of care and treatment in such facilities or places . . . .”

It is defendants’ contention, now adopted by the majority, that this provision expressly limits MHLS’s jurisdiction to facilities licensed by OMH. But the statute does not say that. What it does say is that the service shall provide assistance to patients or residents of facilities “required to have an operating certificate.” If the Legislature had intended to limit the agency’s jurisdiction to facilities that had been actually certificated by OMH, it could have and, doubtless, would have said so. It did not. There are compelling reasons why such a limitation should not be implied.

MHLS is a watchdog agency necessarily independent of OMH and, accordingly, situated in a separate branch of government, namely, the judiciary. Its legislatively assigned mission is, at its core, to safeguard the basic liberty and due process rights of those institutionalized by reason of mental disability and those alleged to be in need of such institutional care. This mission routinely places the Service in an adversary relation to OMH. Whether in the context of representing individuals contesting involuntary commitment or treatment decisions by OMH personnel, or in advocating and sometimes litigating over quality of care issues, such as overcrowding or discharge planning, MHLS is regularly and unavoidably pitted against OMH and other providers of mental health services. It is neither seemly nor consistent with the Service’s basic obligations to condition its jurisdiction upon administrative edicts by its constant, indeed structurally designated adversary.

“any place in which services for the mentally disabled are provided and includes but is not limited to a psychiatric center, developmental center, institute, clinic, ward, institution, or building, except that in the case of a hospital as defined in article twenty-eight of the public health law it shall mean only a ward, wing, unit, or part thereof which is operated for the purpose of providing services for the mentally disabled.”

Here, the record indicates that OMH has made a practice of discharging patients carrying primary, axis I, psychiatric diagnoses from its inpatient facilities to nursing homes, where, according to the patients’ OMH discharge plans, they are to continue to receive a range of treatments primarily for psychiatric disorders. Discovery in this action has disclosed strong evidence that the treatment provided at defendant nursing homes to OMH’s former patients is modeled upon OMH inpatient psychiatric care, and that the former OMH patients have been confined to units they are not free to leave. It has also disclosed, at least at the one defendant nursing home actually surveyed by OMH, highly unsatisfactory institutional conditions raising a host of properly legal issues. Nonetheless, OMH has decided, evidently as a matter of agency policy, that it will not require defendant nursing homes to obtain operating licenses.

“1. Issues raised by the advocacy groups to the Office of Mental Health can be substantiated. These include the de facto placing of individuals with mental illness on a locked unit. There is a lack of advocacy/legal representation available to patients on these units.
“2. The majority of the patients in this facility are individuals with mental illness and therefore it appears that this constitutes a facility for the mentally ill.
“3. The programming lacks any rehabilitative or recovery oriented focus.
“4. Discharge planning did not reflect that the planner was aware of the wide variety of discharge options available.
“5. Restorative and rehabilitative services that were prescribed are all available at other more appropriate levels of care in the community.”

It is the majority’s understanding that this administrative decision is presumptively conclusive of MHLS’s right of access to the nursing homes at issue. It holds that OMH, although complied; in the creation of this highly problematic situation in which institutional psychiatric confinement and treatment is apparently perpetuated without any legal process or access by residents to advocacy, may effectively remove the situation and its likely victims from MHLS’s jurisdiction and scrutiny by declining to require an operating license.

To cast OMH as arbiter of plaintiffs jurisdiction is inappropriate, not simply because OMH may well be—and here quite evidently is—conflicted in deciding the issue, but because it has no special expertise with respect to the essential object of the inquiry. There is no question that OMH is empowered and possesses expertise relevant to decide, at least in the first instance, whether a particular facility must obtain an operating license. But facility licensure is not the purpose of the jurisdictional statute here at issue; MHLS’s jurisdiction—its right of access to facilities providing residential care and treatment for the mentally disabled—exists fundamentally, although not exclusively, to assure that there will in the context of commitment for mental disability be no infringement of liberty interests without due process of law. The inquiry, then, to be answered in determining the statute’s range of application must in its most essential aspect be whether the facility or place at issue is one in which there is ongoing treatment for mental disability entailing on a regular basis the address of forensic issues implicating a patient’s or resident’s right to the assistance of counsel. It is not the role of health care administrators to determine when and where due process requires the presence and assistance of an attorney. That judgment is peculiarly within the competence and expertise of the judiciary. Thus, while it is undoubtedly highly and expressly relevant to the jurisdictional inquiry whether a place or facility is required to have an operating certificate pursuant to article 31 of the Mental Hygiene Law, that determination, for MHLS jurisdictional purposes, is not OMH’s to make. It is in this unique context, when disputed, properly made by the courts with the jurisdictional statute’s broad remedial purposes in mind.

OMH, of course, did not consider whether the residents of defendant nursing homes would have adequate access to counsel when it decided that it would not require the homes to obtain operating certificates. The Director of OMH’s Bureau of Inspection and Certification testified that certification of defendants was not required because it was OMH’s policy not to require skilled nursing facilities to obtain OMH operating certificates; it was his understanding that those facilities fell within the licensing jurisdiction of the Department of Health (DOH). Under OMH’s regulations, this might be a rational ground for an internal agency decision not to require an operating certificate (see 14 NYCRR 70.1 [b])—OMH might reasonably wish to not burden providers with multiple, overlapping certification requirements—but this administrative rationale does not speak to the jurisdictional issue framed by Mental Hygiene Law § 47.01 (a), which is not whether OMH has or has not required the nursing homes at issue to obtain operating certificates, but whether those providers are “required to have an operating certificate pursuant to article . . . thirty-one of [the Mental Hygiene Law]” (emphasis added).

Mental Hygiene Law § 31.02 (a) (1) flatly requires an OMH operating certificate for the “operation of a residential facility or institution, including a community residence, for the care, custody, or treatment of the mentally disabled.” Nursing homes are “residential health care facilit[ies]” (Public Health Law § 2801 [3]), and where a nursing home provides custodial psychotherapeutic treatment of the mentally disabled there would appear to be no ground to conclude that it is not subject to OMH licensure, at least for purposes of determining the jurisdiction of MHLS. It may be that ordinarily nursing homes are licensed by DOH. But ordinarily nursing homes do not provide what amounts to involuntary inpatient psychiatric care and treatment of patients chronically afflicted with axis I psychiatric disorders. Moreover, there is absolutely no authority cited by defendants in support of the proposition that the licensing authority of DOH is exclusive of that of OMH. It would, to the contrary, seem clear that it was DOH’s view that its licensees, to the extent that they provided residential psychiatric services, could be subject to OMH licensure and thus could be required to afford access to MHLS.

“MHLS states, and this Department agrees, that MHLS is an agency of the New York State Court System, established by Mental Hygiene Law (MHL), Article 47. MHL § 47.03 (d) provides that MHLS shall be granted access at any and all times to any ‘facility’ or place or part thereof. For this purpose, MHL § 1.03 (6) defines ‘facility’ in the case of a hospital as defined by Public Health Law, Article, 28 to include a ward, wing, unit or part thereof which is operated for the purpose of providing services to the mentally disabled. A nursing home is a hospital within the meaning of Article 28 of the [P]ublic [H]ealth [L]aw. “This Department agrees that the MHL provides that MHLS is to have access to such facilities [NBUs], including, to the extent applicable, yours.”

Quite apart from the fact that OMH’s decision not to require certification of defendant providers was not, and did not purport to be, based upon the criteria relevant in determining the reach of MHLS’s jurisdiction, the treatment of its decision as an administrative determination somehow binding upon MHLS and, indeed, essentially preclusive of that agency’s jurisdictional claim is contrary to very basic principles of law and procedural fair play.

It is elementary that “[d]ue process . . . would not permit a litigant to be bound by an adverse determination made in a prior proceeding to which he was not a party or in privity with a party” (Gilberg v Barbieri, 53 NY2d 285, 291 [1981]) and, accordingly, that a party may not be bound by an administrative determination that it has not been afforded the opportunity to oppose. The OMH decision at issue, reached by means of a cryptically described series of intra-agency conversations, was not one that MHLS or anyone else was afforded any opportunity to contest at the agency level. Indeed, the decision was not the product of any formal quasi-judicial or rule-making review process discernible from the record. Nor was it reduced to writing or publicized; it was apparently for internal purposes only and, in fact, only came to light in the course of this litigation’s discovery phase.

It would be offensive to due process to deem anyone bound by a “determination” reached and publicized in such a manner. Here, however, the offense is compounded by the circumstance that the party deemed bound is an independent state agency whose jurisdiction has, in consequence of the “determination,” been restricted in a manner incompatible with its legislatively assigned mission and with the clear import and intent of the governing jurisdictional statute. This “determination” does not command deference, and particularly not the extreme, practically talismanic deference it is now given. I would have thought it clear that courts could not upon such a ground determine any rights, much less cede to bureaucrats the peculiarly judicial prerogative to determine when and where counsel is required in defense of basic liberty interests. It should be self-evident that decisions as to the availability of counsel for mentally disabled persons faced with critical choices, and in some cases possible state compulsion in matters respecting their liberty and personal integrity, should not be made as a result of internal agency conversations by health care administrators. Those decisions are properly the function and obligation of the judicial branch. Obviously, the Legislature in enacting the 1993 amendment expressly expanding MHLS jurisdiction to include all facilities and places “required to have an operating certificate pursuant to article . . . thirty-one of [the Mental Hygiene Law]” had not the slightest intention to commit this essentially judicial task to the Commissioner of Mental Health.

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

Order affirmed, without costs.

       Defendant nursing homes maintain that the last date any resident was accepted into an NBU was April 30, 2004, and the date the last resident was discharged from the program by any one of defendant nursing homes was August 16, 2004.

      . Mental Hygiene Law § 1.03 (6), in turn, defines “facility,” in relevant part, as:

      . The OMH surveyor noted at the conclusion of what may be fairly characterized as a scathing assessment:

      . DOH, it should be noted, supported MHLS’s request for access to the NBUs, stating in a letter to the nursing facilities: