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

text:
    [970 NE2d 391, 947 NYS2d 368]
    State of New York ex rel. Kevin Grupp et al., Appellants, v DHL Express (USA), Inc., et al., Respondents.
    Argued March 20, 2012;
    decided April 26, 2012

      POINTS OF COUNSEL

      Hodgson Russ LLP, Buffalo (Daniel C. Oliverio and John L. Sinatra, Jr., of counsel), for appellants.
    I. New York’s False Claims Act is not preempted. (New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645; Engine Mfrs. Assn. v South Coast Air Quality Mgt. Dist., 498 F3d 1031; Building & Constr. Trades Council v Associated

      Builders & Contractors of Mass./R.I., Inc., 507 US 218; Matter of Council of City of N.Y. v Bloomberg, 6 NY3d 380; Cardinal Towing & Auto Repair, Inc. v City of Bedford, Tex., 180 F3d 686; Healthcare Assn. of N.Y. State, Inc. v Pataki, 471 F3d 87; Californians For Safe & Competitive Dump Truck Transp. v Mendonca, 152 F3d 1184; People v Pymm, 76 NY2d 511; Rowe v New Hampshire Motor Transp. Assn., 552 US 364; Morales v Trans World Airlines, Inc., 504 US 374.) II. DHL Express (USA), Inc.’s contract defense fails on this CPLR 3211 (a) (1) motion. (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314; Jesmer v Retail Magic, Inc., 55 AD3d 171; REA Express, Inc. v Civic Aeronautics Bd., 507 F2d 42.) III. DHL Express (USA), Inc.’s 180-day argument fails. (Chevron U.S.A. Inc. v Natural Resources Defense Council, Inc., 467 US 837; United States v Mead Corp., 533 US 218; Sierra Club v Johnson, 541 F3d 1257; In re Apex Express Corp., 190 F3d 624; KVOS, Inc. v Associated Press, 299 US 269; People v Bourne, 139 AD2d 210; Mastercraft Interiors, Ltd. v ABF Frgt. Sys., Inc., 350 F Supp 2d 686; Mitchell v Donchin, 286 F3d 447; Young v United States, 535 US 43.)

      Dechert LLP (Edwin V. Woodsome, Jr., of the California bar, admitted pro hac vice, of counsel), and Dechert LLP, New York City (Joseph F. Donley of counsel), for respondents.
    I. The Airline Deregulation Act and Federal Aviation Administration Authorization Act preempt the relators’ claims. (Morales v Trans World Airlines, Inc., 504 US 374; Rowe v New Hampshire Motor Transp. Assn., 552 US 364; American Airlines, Inc. v Wolens, 513 US 219; Air Transp. Assn. of Am., Inc. v Cuomo, 520 F3d 218; United Airlines, Inc. v Mesa Airlines, Inc., 219 F3d 605; Strategic Risk Mgt. v Federal Express Corp., 253 AD2d 167; Lehman v USAIR Group, Inc., 930 F Supp 912; Statland v American Airlines, Inc., 998 F2d 539; Data Mfg., Inc. v United Parcel Serv., Inc., 557 F3d 849; Musson Theat., Inc. v Federal Express Corp., 89 F3d 1244.) II. No preemption exception applies to the relators’ claims. (American Airlines, Inc. v Wolens, 513 US 219; Mayo v Royal Ins. Co. of Am., 242 AD2d 944; Building & Constr. Trades Council v Associated Builders & Contractors of Mass./R.I., Inc., 507 US 218; Cardinal Towing & Auto Repair, Inc. v City of Bedford, Tex., 180 F3d 686; Vermont Agency of Natural Resources v United States ex rel. Stevens, 529 US 765; Texas Industries, Inc. v Radcliff Materials, Inc., 451 US 630; BMW of North America, Inc. v Gore, 517 US 559; In re Commonwealth Cos., Inc., 913 F2d 518; Matter of Hogan v Cuomo, 67 AD3d 1144; United Airlines, Inc. v Mesa Airlines,

      Inc., 219 F3d 605.) III. Other independent grounds support dismissal. (United States ex rel. Butler v Hughes Helicopters, Inc., 71 F3d 321; In re Apex Express Corp., 190 F3d 624; United States v Mead Corp., 533 US 218; Chevron U.S.A. Inc. v Natural Resources Defense Council, Inc., 467 US 837; Island Park, LLC v CSX Transp., 559 F3d 96; Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399; Guilbert v Gardner, 480 F3d 140.)
   OPINION OF THE COURT

Jones, J.

In this qui tarn action, this Court is asked to consider whether plaintiffs’ claims on behalf of the State of New York, pursuant to the New York False Claims Act (FCA) (State Finance Law § 187 et seq.), are federally preempted by the Airline Deregulation Act of 1978 (ADA) (49 USC § 41713 [b] [1]) and the Federal Aviation Administration Authorization Act (FAAAA) (49 USC § 14501 [c] [1]). We hold they are and that the market participant doctrine is inapplicable.

Pursuant to a contract with the State of New York, defendant DHL Express (USA), Inc. (DHL) agreed to provide various courier services via air and ground transportation, including “Overnight Air Express,” “Next Afternoon Service,” “Second Day Service,” and “Ground Delivery Service.” Plaintiffs Kevin Grupp and Robert Moll own a trucking company and served as an independent contractor to DHL, providing ground shipping services to defendant within the state.

Plaintiffs, as relators, commenced an action on behalf of the State pursuant to the FCA, alleging violations of State Finance Law § 189 (1) (a), (b) and (c) and seeking treble damages, penalties and costs. They assert that from 2003 through 2008, DHL engaged in a persistent practice of misrepresentation, claiming that packages were delivered by air, when in fact, they were shipped via ground transportation. By doing so, the complaint alleges, DHL would impose a jet fuel surcharge even though “[a] substantial percentage of DHL Next Day and 2nd Day deliveries paid for by the State did not travel by air at all.” It is further alleged that DHL billed the State a diesel fuel surcharge even when independent contractors, such as plaintiffs, “incurred the majority of fuel costs associated with DHL’s ground transportation service.”

DHL moved to dismiss the complaint, arguing, in relevant part, that plaintiffs’ action was preempted by the ADA and FAAAA. Supreme Court denied the motion, concluding that the market participant exception to federal preemption applied. Relying primarily on Cardinal Towing & Auto Repair, Inc. v City of Bedford, Tex. (180 F3d 686 [5th Cir 1999]), the court reasoned that the instant action pertained to the State’s proprietary, and not regulatory, capacity. It remarked that

“[t]he overcharging of the State for goods and services provided by private companies is the prime ill that the [FCA] seeks to address—which is, for the State, a specific proprietary problem. But because the State is such a major consumer of goods and services, the [FCA] permits relators such as plaintiffs to bring to its attention and, taking the risk of nonrecovery, prosecute the State’s claims against providers of false statements” (28 Misc 3d 973, 984 [Sup Ct, Erie County 2010] [internal quotation marks and citation omitted]).

The Appellate Division unanimously reversed, granting the motion and dismissing the complaint (83 AD3d 1450 [4th Dept 2011]). The court rejected the market participant doctrine, concluding that “the broad scope of the FCA demonstrates that its primary goal is to regulate the actions of those who engage in business with the State, and thus the statute enforces a general policy” (id. at 1452).

This Court granted plaintiffs leave to appeal (17 NY3d 705 [2011]), and we now affirm.

Plaintiffs contend that the United States Congress, by encouraging states to pass fraudulent claim statutes such as the FCA, could not have intended for those statutes to be preempted. Further, plaintiffs contend that the FCA is neither regulatory in nature nor related to the “price [s], route [s], or service [s] ” of DHL. In the alternative, they argue that if preemption is found, then the market participant exception applies because the instant claims pertain to the State’s proprietary capacity, as a private actor, in procuring courier services from DHL. We find these arguments unavailing.

Under the Supremacy Clause of the United States Constitution, federal laws “shall be the supreme Law of the Land” (US Const, art VI, cl 2) and Congress is vested with the authority to supersede state statutory or regulatory law (see People v First Am. Corp., 18 NY3d 173, 179 [2011]). Thus, the primary concern of courts engaged in preemption analysis is “ascertain[ing] the intent of Congress” (Matter of People v Applied Card Sys., Inc., 11 NY3d 105, 113 [2008], quoting California Fed. Sav. & Loan Assn. v Guerra, 479 US 272, 280 [1987]). There is no plainer indication of preemptive intent than the express language of a statutory provision (see Doomes v Best Tr. Corp., 17 NY3d 594, 601 [2011]; Balbuena v IDR Realty LLC, 6 NY3d 338, 356 [2006]).

The ADA provides, in relevant part:

“Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart” (49 USC § 41713 [b] [1]).

The FAAAA has a nearly identical provision that preempts the enforcement of state laws that relate to “any motor private carrier, broker, or freight forwarder with respect to the transportation of property” (see 49 USC § 14501 [c] [1]).

The United States Supreme Court has had previous occasion to consider the scope of these provisions, ascribing them “a broad pre-emptive purpose” (Morales v Trans World Airlines, Inc., 504 US 374, 383 [1992]; see also American Airlines, Inc. v Wolens, 513 US 219 [1995]; Rowe v New Hampshire Motor Transp. Assn., 552 US 364 [2008]). The Morales Court observed that Congress had enacted the ADA with the goal of deregulating the airline industry based on the rationale that “maximum reliance on competitive market forces would best further efficiency, innovation, and low prices as well as variety [and] quality .. . of air transportation services” (Morales, 504 US at 378 [internal quotation marks and citations omitted]). In conjunction with this purpose, the “relating to” language was construed to have expansive import, preempting any form of “[s]tate enforcement actions having a connection with, or reference to, airline rates, routes, or services” (id. at 384 [emphasis added and internal quotation marks omitted]).

In light of the breadth of the ADA and FAAAA’s preemptive language, we reject plaintiffs’ contentions that their FCA claims only seek to enforce the State’s proprietary interests against the fraud perpetrated by DHL’s alleged pricing scheme and are based on general laws that do not prescribe the rates, routes and services of airlines and carriers. On these points, Morales and Wolens, where similar state fraud claims were federally preempted, are particularly instructive.

In Morales, the National Association of Attorneys General (NAAG), an organization composed of the attorneys general of all 50 states, adopted extensive guidelines establishing “standards governing the content and format of airline advertising,” among other things (Morales, 504 US at 379). Pursuant to these guidelines, the attorneys general of seven states issued an advisory memorandum to major airlines, notifying them that the continued failure to disclose surcharges was “a violation of our respective state laws on deceptive advertising and trade practices” and could result in the commencement of “immediate enforcement actions” (id. at 379). Although the states’ intended goal was “preventing the market distortion caused by false advertising” through the enforcement of state fraud and consumer protection statutes (id. at 389 [internal quotation marks omitted]), the claims were federally preempted because the state guidelines “related to” or bore a “reference to” airfares and rates. The Court also rejected the argument that general state fraud laws that do not prescribe rates, routes and services avoid preemption, concluding that such a construction “ignores the sweep” (id. at 386) of the preemptive language and “reads the words ‘relating to’ out of the statute” (id. at 385).

Similarly, in Wolens—a case we find hard to distinguish from this appeal—the plaintiffs asserted claims under the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act), seeking monetary relief for the fraudulent devaluation of their earned rewards caused by the defendant airline’s unilateral modification to its “frequent flyer” program (see Wolens, 513 US at 224-225). Although the plaintiffs’ breach of contract claims were allowed to proceed, the Court found the Consumer Fraud Act to be federally preempted because it had similar effect as the NAAG guidelines in Morales-, that is, “it controls the primary conduct of those falling within its governance” and “serves as a means to guide and police the marketing practices of the airlines,” thereby infringing on the airline’s ability to set its rates, routes or services (Wolens, 513 US at 227, 228).

Accordingly, as the lower courts correctly held, plaintiffs’ claims are preempted by the ADA and FAAAA as they plainly have a connection with, or reference to, the rates, routes and services of DHL. Although the gravamen of plaintiffs’ complaint pertains to fraudulent misrepresentations, like the state fraud actions in Morales and Wolens, the instant State Finance Law claims are premised on alleged practices that are directly related to the imposition of fuel surcharges for the offered shipment options and thus reference, at a minimum, the rates billed by the courier.

Of course, the broad preemptive effect of the ADA and FAAAA should not be strained to encompass every asserted claim pertaining to the rates, routes or services of an airline or carrier. The Supreme Court observed that there are certain actions that are sufficiently remote or tenuously related to rates, routes, and services as to avoid preemption (see id. at 390), identifying routine breach of contract claims as such a peripheral cause of action as they enforce privately bargained-for obligations rather than further policy matters. Therefore, while the breadth of the ADA and FAAAA may preempt states “from imposing their own substantive standards with respect to rates, routes, or services, [it does not preclude] relief to a party who claims and proves that an airline dishonored a term the airline itself stipulated” (Wolens, 513 US at 232-233). Plaintiffs thus alternatively argue that their claims should proceed because they seek to hold DHL liable for breaching its self-imposed obligations under its agreement with the State. However, plaintiffs—who were not parties to the underlying agreement between DHL and the State— cannot recover under a breach of contract action because they lack privity to enforce the benefit of the parties’ bargain. Indeed, their claims are premised solely on the FCA, as relators, and the Supreme Court has expressly ruled that causes of action that are “enlarge[d] or enhance[d] based on state laws or policies external to the agreement” are preempted (id. at 233).

Having concluded—as the lower courts did—that plaintiffs’ claims are within the scope of express statutory preemptions, we turn to the plaintiffs’ primary argument that the market participant doctrine exception is applicable here. Generally, the market participant doctrine recognizes the important distinction between the actions of a state in its dual regulatory and proprietary capacities. “[W]hen a state or municipality acts as a participant in the market and does so in a narrow and focused manner consistent with the behavior of other market participants, such action does not constitute regulation subject to preemption” (Cardinal Towing, 180 F3d at 691). However, a governmental entity does not escape federal preemption, even when assuming the role of private actor, if it “us[es] its power in the marketplace to implement governmental policies” (Matter of Council of City of N.Y. v Bloomberg, 6 NY3d 380, 395 [2006]). Indeed, “a state acts as a regulator, not a proprietor, when it uses its bargaining leverage as a means of attaining policy ends” (Council of City of N.Y., 6 NY3d at 395, citing Building & Constr. Trades Council v Associated Builders & Contractors of Mass./R.I., Inc., 507 US 218 [1993]). Put another way, “courts have found preemption when government entities seek to advance general societal goals rather than narrow proprietary interests through the use of their contracting power” (Cardinal Towing, 180 F3d at 692).

Facially, it is evident that the State procured services from DHL in its proprietary capacity, however, plaintiffs’ reliance on the FCA, which establishes public policy goals and is thus regulatory in nature, renders the market participant exception inapplicable to this case. State Finance Law § 189 (1) (g) provides, in relevant part, that a finding of liability under the statute may result in “a civil penalty of not less than six thousand dollars and not more than twelve thousand dollars, plus three times the amount of all damages, including consequential damages.” Thus, rather than redressing the harm actually suffered, the statute’s imposition of civil penalties and treble damages evinces a broader punitive goal of deterring fraudulent conduct against the State. That is, instead of compensating the State for damages caused by DHL’s purported scheme and addressing its narrow proprietary interests, the FCA would punish and consequently deter such future conduct, thereby promoting a general policy (Vermont Agency of Natural Resources v United States ex rel. Stevens, 529 US 765, 786 [2000], citing Texas Industries, Inc. v Radcliff Materials, Inc., 451 US 630, 639 [1981] [“The very idea of treble damages reveals an intent to punish past, and to deter future, unlawful conduct, not to ameliorate the liability of wrongdoers”]). In light of the FCA’s regulatory effect, the market participant exception is rendered inapposite to this appeal.

Plaintiffs’ remaining contentions have been considered and deemed without merit.

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

Pigott, J. (dissenting).

I respectfully dissent. Assuming that plaintiffs’ claims lie within the scope of the statutory preemptions of the Airline Deregulation Act (ADA) and the Federal Aviation Administration Authorization Act (FAAAA) (see 49 USC § 41713 [b] [1]; 49 USC § 14501 [c] [1]), I believe that the market participant doctrine applies here. “[W]hen a State acts as a market participant with no interest in setting policy, as opposed to a regulator,” it does not violate preemption principles (Chamber of Commerce of United States v Brown, 554 US 60, 70 [2008] [internal quotation marks omitted]). I would deny defendants’ motion to dismiss.

In my view, Supreme Court correctly perceived that the dis-positive questions are whether the action brought by plaintiffs “essentially reflect[s] the [State’s] own interest in its efficient procurement of needed goods and services, as measured by comparison with the typical behavior of private parties in similar circumstances” and whether “the narrow scope of the challenged action defeat[s] an inference that its primary goal was to encourage a general policy rather than address a specific proprietary problem” (State of N.Y. ex rel. Grupp v DHL Express [USA], Inc., 28 Misc 3d 973, 983-984 [2010] [emphasis omitted], quoting Cardinal Towing & Auto Repair, Inc. v City of Bedford, Tex., 180 F3d 686, 693 [5th Cir 1999]). I would answer both questions in the affirmative.

The New York False Claims Act, mirroring the federal government’s False Claims Act, subjects “any person who . . . knowingly presents, or causes to be presented a false or fraudulent claim for payment or approval” by the State, or “knowingly makes, uses, or causes to be made or used, a false record or statement material to” such a false or fraudulent claim, to civil liability including treble damages (State Finance Law § 189 [1] [a], [b], [g]). Furthermore, the New York False Claims Act allows “relators” to blow the whistle on a government contractor’s fraudulent claims by bringing a qui tarn civil action on behalf of the State of New York (State Finance Law § 190 [2]). It is the intent of the statute to be applied broadly to almost any situation where state dollars are involved.

Here, the complaint alleges that DHL fraudulently charged the State jet fuel, rather than diesel fuel, surcharges on Next Afternoon and Second Day shipments that it in fact transported by ground, a claim that directly relates to the State’s efficient procurement of needed shipping services. The relators’ action was specific to one particular package delivery company. The relators sought not to regulate shipping rates, but to address a very narrow instance of alleged fraudulent overcharging of the State. That is, for the State, a “specific proprietary problem,” and I see no evidence of any regulatory impulse.

The majority, in its brief discussion of the market participant doctrine, cites Matter of Council of City of N.Y. v Bloomberg (6 NY3d 380, 395 [2006]), in which we held that the market participant exception does not apply when the State acts with an interest in setting policy. In Council of City of N.Y., we ruled that New York City law preventing agencies from contracting with providers that did not offer domestic partner benefits to their employees clearly set policy, and was subject to preemption. The present case could not be more different. The State’s role with respect to the action is as a buyer of DHL’s services on the open market, rather than as a policymaker.

Although the majority accepts, as it must, that “the State procured services from DHL in its proprietary capacity” (majority op at 286), it attempts to avoid the market participant doctrine by suggesting that plaintiffs’ reliance on the False Claims Act renders the exception inapplicable (id. at 286). For this conclusion, the majority offers only one reason—that the False Claims Act imposes civil penalties and treble damages to deter fraudulent conduct against the State (id.). In my view, this reasoning is insufficient. An action under State Finance Law § 189 (1) is not designed to regulate and set policy, but rather to protect the State’s interest in cost efficiency. That the action will have benefits outside itself does not take away from the fact that the law exists to protect state proprietary interests. As the New York State Senate Introducer’s Memorandum in Support of the False Claims Act notes, its purpose is to “help to protect taxpayer dollars by deterring the submission of false claims, enhancing the ability to recover amounts defrauded from the state and local governments, and imposing appropriate civil penalties upon those who have engaged in such illegal activities.” (Mem in Support of 2006 NY Senate Bill S3895.) In allowing an action to be brought under this statute, the State is not regulating an industry; rather it is taking part in the activity of the market.

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

Order affirmed, with costs.

      . In December 2001, the State of New York, through its Office of General Services, awarded Airborne Express—DHL’s predecessor in interest—a contract to provide the State with courier services.

      . State Finance Law § 189 (1) (a) and (b) state that a person will be held liable under the FCA if he or she “knowingly presents, or causes to be presented a false or fraudulent claim for payment or approval”; “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.”

      . Plaintiffs served their complaint on the State Attorney General, but the Attorney General declined to intervene.

      . Plaintiffs also allege that in 2004, DHL had expanded its network of truck hubs, increasing the efficacy of ground transportation and obviating the need for air transportation of packages.

      . The United States Supreme Court looked to comparable “relating to” language in the preemption provision of the Employee Retirement Income Security Act of 1974 (ERISA) (29 USC § 1144 [a]) which was broadly interpreted to preempt any state law that “has a connection with or reference to [an ERISA] plan” (see Morales, 504 US at 384, quoting Shaw v Delta Air Lines, Inc., 463 US 85, 97 [1983]).

      . Section 2.5 of the guidelines provided that “[a]ny fuel, tax, or other surcharge to a fare must be included in the total advertised price of the fare” (Morales, 504 US at 405).

      . Notably, the First District Court of Appeal of Florida recently dismissed, and the Supreme Court of Florida declined review of DHL Express (USA), Inc. v State, ex rel. Grupp (60 So3d 426 [2011], review denied 81 So3d 415 [2012]), an identical action commenced by these plaintiffs against DHL under the false claims act of that state (see Fla Stat § 68.081 [2]; § 68.082 [2]). In its decision, the Florida court similarly rejected the market participant doctrine, concluding that the state “acts as a regulator in authorizing suits under the False Claims Act which, as noted above, serve to deter future behaviors on the part of the defendants” (60 So3d at 429). Like State Finance Law § 189 (1) (g), the Florida statute also imposes civil fines and treble damages in qui tarn actions.


source: Caselaw Access Project

author: Ciparick, J. Graffeo, J. (concurring in result only). Smith, J. (concurring).

license: Public Domain

text:
    [970 NE2d 833, 947 NYS2d 798]
    The People of the State of New York, Respondent, v James D. Kent, Appellant.
    Argued March 20, 2012;
    decided May 8, 2012

      POINTS OF COUNSEL

      Diarchies, Eiger & Abelson, P.C., New York City (Nathan Z. Diarchies and Victoria B. Eiger of counsel), for appellant.
    I. James Kent’s conviction on count 1—promoting a sexual performance by a child (procurement) of the cached “School Backyard” Web page—must be set aside. (People v Keyes, 75 NY2d 343; Stanley v Georgia, 394 US 557; Osborne v Ohio, 495 US 103; People v Ribowsky, 77 NY2d 284; People v Spann, 56 NY2d 469; People v Roberts, 135 AD2d 1026; People v Charles, 61 NY2d 321; Matter of Corbin v Hillery, 74 NY2d 279, affd sub nom. Grady v Corbin, 495 US 508; United States v Dixon, 509 US 688; People v Rubin, 101 AD2d 71.) II. James Kent’s conviction for procurement of the Arina video is also invalid: neither the prosecution’s theory as charged in the indictment, or as amended at the end of the trial, constitutes procurement (promotion). (People v LaPetina, 34 AD3d 836, 9 NY3d 854;
      People v Perez, 83 NY2d 269; People v Chicas, 204 AD2d 476; People v Brown, 221 AD2d 353; People v Taplin, 1 AD3d 1044; People v Thompson, 217 AD2d 929; People v O’Connor, 240 AD2d 764; People v Bell, 206 AD2d 686; People v Rogers, 141 AD2d 870; People v Pike, 254 AD2d 727.) III. James Kent’s possessing a sexual performance by a child convictions are also invalid. (People v Fraser, 96 NY2d 318, 533 US 951; Holcomb v Harris, 166 NY 257; CMI Capital Mkt. Inv., LLC v Municipality of Bayamon, 410 F Supp 2d 61; People v Zagorsky, 73 Misc 2d 420; People v Melhado, 53 NY2d 984; People v Williams, 43 NY2d 725; New York v Ferber, 458 US 747.) IV James Kent’s claim of ineffective assistance of counsel based on failure to challenge the warrantless search of Kent’s hard drive was ripe for consideration on appeal; the search was illegal as a matter of constitutional law. (People v Mobley, 59 AD3d 741; People v Donovan, 184 AD2d 654; People v Rivera, 71 NY2d 705; People v Park, 60 AD3d 972; People v Sinatra, 89 AD2d 913; People v Marcial, 41 AD3d 1308; People v Cyrus, 48 AD3d 150; People v Belton, 55 NY2d 49; People v Torres, 74 NY2d 224; People v Weaver, 12 NY3d 433.)

      William V. Grady, District Attorney, Poughkeepsie (Bridget Rahilly Steller of counsel), for respondent.
    I. Defendant’s guilt of promoting a sexual performance by a child relating to the “School Backyard” Web page was established beyond a reasonable doubt. (People v Keyes, 75 NY2d 343; People v Fraser, 264 AD2d 105, 96 NY2d 318, 533 US 951; People v Greenberg, 89 NY2d 553; People v Thomas, 273 AD2d 490, 95 NY2d 970; People v Lovacco, 147 AD2d 592, 74 NY2d 743; People v Iannone, 45 NY2d 589; People v D’Angelo, 98 NY2d 733; People v Davis, 41 NY2d 678; People v Kolupa, 13 NY3d 786; People v Hines, 97 NY2d 56.) II. Defendant’s guilt of promoting a sexual performance by a child relating to the Arina video was established beyond a reasonable doubt. (People v Beasley, 16 NY3d 289; People v Hawkins, 11 NY3d 484; People v D’Angelo, 98 NY2d 733; People v Iannone, 45 NY2d 589; People v Cunningham, 48 NY2d 938; People v Jackson, 111 NY 362; People v O’Connor, 240 AD2d 764; People v LaPetina, 34 AD3d 836; People v Straniero, 17 AD3d 161, 5 NY3d 795; People v Robinson, 119 AD2d 598, 68 NY2d 816.) III. Defendant’s guilt of the 134 counts of possessing a sexual performance by a child was established beyond a reasonable doubt. (People v Beasley, 16 NY3d 289; People v Hawkins, 11 NY3d 484; People v Cona, 49 NY2d 26; People v Fraser, 96 NY2d 318; People v Keyes, 75 NY2d 343; New York v

      Ferber, 458 US 747; People v Malizia, 62 NY2d 755.) IV Defendant received the effective assistance of trial counsel. (People v Benevento, 91 NY2d 708; People v Rivera, 71 NY2d 705; People v Ramirez-Portoreal, 88 NY2d 99; People v Denny, 95 NY2d 921; People v Love, 57 NY2d 998.)
   OPINION OF THE COURT

Ciparick, J.

The question presented for our review is whether the evidence proffered at defendant’s trial was legally sufficient to support his convictions for promoting a sexual performance by a child (Penal Law § 263.15) and possessing a sexual performance by a child (Penal Law § 263.16). We must consider, among other issues, the evidentiary significance of “cache files,” or temporary Internet files automatically created and stored on a defendant’s hard drive, and the defendant’s awareness of the presence of such files. We conclude that where the evidence fails to show that defendant had such awareness, the People have not met their burden of demonstrating defendant’s knowing procurement or possession of those files. We further conclude that merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law.

L

The following evidence was adduced at defendant’s trial. On May 26, 2005, defendant James D. Kent, a professor of public administration at a Dutchess County college, received a new office computer through a campus-wide technology upgrade. The files stored on the hard drive of the old computer were transferred to the new computer. On April 5, 2007, a student employee of the college’s information technology (IT) department went to defendant’s office in response to his complaints that his computer was malfunctioning. While running a virus scan of the computer’s hard drive, the employee discovered a work folder containing numerous “.jpg” or picture files, displayed as “thumbnails,” of scantily clad, prepubescent girls in provocative poses. When the virus scan failed to correct the computer’s unresponsiveness, the employee removed defendant’s hard drive and took it back to the IT office, where supervisors learned of the images. College administrators informed defendant that these images had been found on his computer, but defendant denied any knowledge of them. Approximately two weeks later, the college submitted defendant’s hard drive to the Town of Poughkeepsie Police Department with a “Consent to Search” form signed by a college administrator.

Barry Friedman, an investigator in the computer forensic lab of the New York State Police, conducted a forensic analysis of defendant’s hard drive using EnCase Software (EnCase). Investigator Friedman explained that EnCase searches both allocated space, which contains data (including saved items or items sent to the “recycle bin”) that is readily accessible to a user, and unallocated space, which contains material deleted from the allocated space and is inaccessible to a user. Defendant’s computer contained Real Player, a downloadable media program used to play videos and music that maintains a “play” history. The computer also had two Internet browsers: Internet Explorer and Mozilla Firefox. In addition to the default profile provided by Mozilla Firefox, a second profile under the name of “Jim” had been created.

The allocated space under the Jim profile on Mozilla Firefox contained a temporary Internet file known as a Web “cache.” A cache contains images or portions of a Web page that are automatically stored when that page is visited and displayed on the computer screen; if the user visits the Web page again at a later date, the images are recalled from the cache rather than being pulled from the Internet, allowing the page to load more quickly. The cache under the Jim profile contained a .jpg image of a child pornography Web site called “School Backyard” that depicted children engaged in sexual intercourse with adults.

According to the EnCase software, the “School Backyard” page had been accessed on the morning of February 21, 2007. Within minutes of accessing “School Backyard,” three other pages were accessed—two images of a young girl sitting in the front seat of her car with her wrists bound and a Web page labeled “Pedoland”—which were also stored in the Web cache. The cache contained several other Web pages labeled, among other things, “Best CP Sites Portal, the Best Lolita CP Sites,” that provided links to child pornography Web sites. Additionally, the Real Player history included links to numerous videos with file names indicating that they contained child pornography that were accessed, some on multiple occasions, between 2005 and 2007. There was no evidence that defendant was aware either of the cache function of his computer or that any of these files were stored in the cache.

The allocated space on defendant’s hard drive also contained a “My Documents” folder with subfolders labeled “cdocs” and another labeled “work,” and an additional folder labeled “JK.” The “cdocs” subfolder contained approximately 13,000 saved images of female children, whom Investigator Friedman estimated to be eight or nine years old, dressed in lingerie or bathing suits and many with their legs spread open. The “work” subfolder contained an additional 17,000 saved images of female children, some organized into further subfolders named for a particular child. The JK folder held a file labeled “porndef.pb,” which contained a document that included the text of four messages dated between June 1999 and July 2000 and directed to the unidentified recipient “P.B.” The messages apparently relate to a potential research project on the regulation of child pornography and include comments such as “sooner or later someone at this college is going to wonder why I keep looking at porno sites.” A final message dated July 11, 2001 states:

“Well, this last batch pretty much tears it. While, as somebody’s father, I’m pretty appalled by this stuff, I also don’t want to get arrested for having it. So let’s do this—if this is a legitimate research project, let’s write it up and tell the deans (and preferably also the cops) what we’re doing and why. Otherwise, let’s drop it in the most pronto possible fashion.
“I don’t even think I can mail the disk to you, or anyone else, without committing a separate crime. So I’ll probably just go ahead and wipe them. You have the URLs if you want to pursue it.
“See you sooner or later, no doubt. Kent.”

From the unallocated space on the computer, EnCase retrieved a video containing child pornography that had previously been downloaded and saved to the allocated space under the file name “Arina.” EnCase also discovered over 130 .jpg images depicting children engaged in oral sex and sexual intercourse with dogs, adults and other children, children being penetrated by objects, and the lewd exhibition of the exposed genitals of female children. Like the “Arina” video, each of these images had been downloaded and stored in the allocated space of defendant’s computer at some point between May 26, 2005 (the date that data was transferred from defendant’s old computer to his new computer) and April 5, 2007 (the date the IT employee removed the hard drive) before the user deleted them, sending them to unallocated space. There was no evidence that defendant ever paid for access to any of the child pornography found on his computer.

Defendant was indicted on two counts of promoting a sexual performance by a child (Penal Law § 263.15) and 141 counts of possessing a sexual performance by a child (Penal Law § 263.16). Counts 1 and 142 related, respectively, to defendant’s alleged procurement and possession of the “School Backyard” Web page; counts 2 and 143 related, respectively, to defendant’s alleged procurement and possession of the “Arina” video; counts 3 through 141 charged defendant with possession of the .jpg images recovered from the unallocated space of the hard drive. During defendant’s six-day nonjury trial, County Court denied defendant’s trial motions for dismissal of the indictment. At the close of the trial, County Court granted the People’s motion to conform the pleadings to the proof by amending count 2 of the indictment to reflect May 18, 2005 as the date of the alleged procurement of the “Arina” video. Thereafter, County Court found defendant guilty of both procurement counts (1 and 2) and 134 of the 141 possession counts, including counts 142 and 143. County Court subsequently denied defendant’s motion to set aside the verdict, finding that the evidence was legally sufficient to sustain his convictions (see CPL 330.30 [1]). Defendant was sentenced to concurrent indeterminate prison terms of 1 to 3 years.

The Appellate Division affirmed County Court’s judgment (see People v Kent, 79 AD3d 52, 73 [2d Dept 2010]). Addressing the evidentiary significance of the presence of Internet files stored in a cache, as well as the significance of defendant’s knowledge or lack of knowledge regarding the cache function of his computer, the court undertook a review of both federal and state approaches to these issues (see id. at 65-66). Noting that “[t]he consistent thread in these cases is the need to distinguish inadvertent or unintentional acquisition or possession of the offensive material from knowing or intentional procurement and possession,” the court stated its preliminary “agreement with the underlying premise that the mere existence of an image automatically stored in the cache, standing alone, is legally insufficient to prove either knowing procurement or knowing possession of child pornography” (id. at 66).

The court adopted the view, however, that “a Web page stored in the cache is evidence of past procurement of the images on that page. Specifically, the cached Web page from the ‘School Backyard’ site is evidence that the Web page was accessed and displayed on the defendant’s computer screen” (id. at 67). That defendant knowingly accessed the page was demonstrated by a totality of evidence including defendant’s pattern of Internet browsing for child pornography Web sites, his Real Player history, and his messages to “EB.” acknowledging his possession of child pornography (id. at 67-68). The court further held that the evidence was legally sufficient to prove defendant’s knowing possession of the images on the “School Backyard” page, finding that defendant “knowingly accessed the Web page and displayed it on his computer screen . . . establishing his dominion and control over the images” (id. at 68).

The court also found that the evidence was legally sufficient to support defendant’s 134 other convictions, because those counts were based on “images which, at one time, had been downloaded and saved in the allocated space of the hard drive and subsequently deleted” (id. at 68-69). With respect to count 2, for promotion of the “Arina” video, the court found that “the totality of the direct and circumstantial evidence of. . . defendant’s extensive use of his office computer to obtain and view child pornography was a sufficient basis from which the fact-finder could infer that [he] acquired the video, and thus, committed an act of procurement” (id. at 70).

A Judge of this Court granted defendant leave to appeal (17 NY3d 797 [2011]) and we now modify by reversing defendant’s convictions on counts 1 and 142 for promotion and possession of the “School Backyard” Web page and, as so modified, affirm.

IL

Recognizing that “[t]he public policy of the state demands the protection of children from exploitation through sexual performances” (L 1977, ch 910, § 1), the Legislature enacted article 263 of the Penal Law “to eradicate the social evil of child pornography” (People v Keyes, 75 NY2d 343, 348 [1990]). With limited exception (see People v Fraser, 96 NY2d 318 [2001]), we have not had occasion to determine the extent to which the current statutory scheme applies to child pornography distributed and consumed over the Internet, a forum unknown to legislative drafters 30 years ago and which now provides a readily accessible and expansive marketplace for illicit material. Indeed, the Internet now allows for “a diverse array of offenders who can access and circulate images easily and privately from home computers” (see Wolak, Finkelhor, Mitchell and Ybarra, Online “Predators” and Their Victims: Myths, Realities, and Implications for Prevention and Treatment, 63 Am Psychologist 111, 120 [Feb.-Mar. 2008]). The resulting danger to the safety and welfare of children cannot be overstated: in a study of persons prosecuted for Internet-related child pornography crimes, 80% had images showing the sexual penetration of a child and nearly 20% had images of children younger than age three (see Wolak, Finkelhor and Mitchell, Child-Pornography Possessors Arrested in Internet-Related Crimes: Findings from the National Juvenile Online Victimization Study, at 5 [2005]).

Penal Law § 263.15 provides that “[a] person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age.” To “promote” means, among other things, “to procure” (Penal Law § 263.00 [5]), itself defined as “obtain, acquire ... to get possession of by particular care or effort” (Keyes, 75 NY2d at 348 [internal quotation marks omitted]). Thus, “the term ‘procure’ . . . defines ‘promote’ for the purposes of Penal Law § 263.15 as simply the acquisition of child pornography, whether for personal consumption or for distribution to others” (id.). Penal Law § 263.16 provides that “[a] person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.”

For purposes of both the promotion and possession statutes, “performance” is defined as “any play, motion picture, photograph or dance” (Penal Law § 263.00 [4]). We have held that digital computer images are photographs within the meaning of section 263.00 (4) (see Fraser, 96 NY2d at 327-328). “Sexual conduct,” as used in both statutes, “means actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals” (Penal Law § 263.00 [3]). Furthermore, both crimes require that the defendant acted knowingly (see Penal Law § 15.05 [2]). The exercise of ‘‘[d]ominion or control is necessarily knowing, and such ‘constructive possession’ may qualify as knowing possession” (People v Muhammad, 16 NY3d 184, 188 [2011]).

Defendant argues that merely “accessing and displaying” Web images of child pornography does not constitute procurement for purposes of Penal Law § 263.15. Defendant further contends that his possession convictions are invalid because Penal Law § 263.16 criminalizes the possession of tangible items only and that, absent proof that defendant was aware of his computer’s cache function, he could not have knowingly possessed any item stored in the cache. For the reasons that follow, we agree with defendant’s first proposition. We also agree that where a promotion or possession conviction is premised on cached images or files as contraband, the People must prove, at a minimum, that the defendant was aware of the presence of those items in the cache. We hold, however, that regardless of a defendant’s awareness of his computer’s cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant’s conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving.

Federal courts have held that for digital images to constitute evidence of knowing possession of child pornography, such images must be connected to something tangible (e.g., the hard drive), as they are when stored in a cache, and that the defendant must be aware of that connection (see United States v Romm, 455 F3d 990, 1000 [9th Cir 2006] [“to possess the images in the cache, the defendant must, at a minimum, know that the unlawful images are stored on a disk or other tangible material in his possession”]; United States v Tucker, 305 F3d 1193, 1205 [10th Cir 2002] [“Since (the defendant) knew his browser cached the image files, each time he intentionally sought out and viewed child pornography with his Web browser he knowingly acquired and possessed the images”]). At least two state courts have adopted the federal approach (see Worden v State, 213 P3d 144, 147-149 [Alaska 2009]; Barton v State, 286 Ga App 49, 52-53, 648 SE2d 660, 663 [2007]).

The rule espoused by several other states and by the Appellate Division—that defendant’s awareness of the automatic cache function is immaterial because it is not the cached files that constitute the contraband but the images previously displayed—is conceptually distinct as it does not rely on the tangibility of the image (i.e., its permanent placement on the defendant’s hard drive and his ability to access it later) but on the fact that the image was, at one time, knowingly accessed and viewed (see Kent, 79 AD3d at 68; see also State v Hurst, 181 Ohio App 3d 454, 470, 909 NE2d 653, 664-665 [2009]; People v Josephitis, 394 111 App 3d 293, 301, 914 NE2d 607, 612-613 [2009]).

Like the federal courts to address the issue, we agree that where no evidence shows defendant was aware of the presence of the cached files, such files cannot underlie a prosecution for promotion or possession. This is necessarily so because a defendant cannot knowingly acquire or possess that which he or she does not know exists (see United States v Kuchinski, 469 F3d 853, 863 [2006] [to prosecute a defendant who lacks knowledge about the cache for possession of files stored therein “turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control”]).

However, cached images can serve as evidence of defendant’s prior viewing of images that were, at one time, resident on his computer screen. Such evidence, like a pattern of browsing for child pornography, is relevant to the mens rea of both crimes by showing that a defendant did not inadvertently access an illicit image or site or was not mistaken as to its content.

Nonetheless, that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession. We do not agree that “purposefully making [child pornography] appear on the computer screen—for however long the defendant elects to view the image—itself constitutes knowing control” (Kent, 79 AD3d at 66, quoting Commonwealth v Diodoro, 601 Pa 6, 18, 970 A2d 1100, 1107 [2009]). Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen. To hold otherwise, would extend the reach of article 263 to conduct—viewing—that our Legislature has not deemed criminal.

The federal statute regulating conduct related to child pornography, 18 USC § 2252A, provides a useful contrast. Section 2252A was amended in 2008 to provide that any person who either “knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography” is subject to a fine and imprisonment (see 18 USC § 2252A [a] [5] [B] [emphasis added], as amended by Pub L 110-358, § 203, 122 US Stat 4002, 4004). Neither provision of the Penal Law at issue here contains comparable language targeted toward the “pull technology” by which one accesses and views Internet images. The words that are employed—“procures” and “possesses”—would not, in ordinary speech, encompass the act of viewing (see State v Barger, 349 Or 553, 563, 247 P3d 309, 314 [2011] [“Looking for something on the Internet is like walking into a museum to look at pictures— the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them”]).

Here, the “School Backyard” Web page was automatically stored in the cache in allocated space that was accessible to defendant. The People did not demonstrate that defendant knew that the page, or any other, for that matter, had been cached. While the cached page provided evidence that defendant previously viewed the site, the People presented no evidence that defendant downloaded, saved, printed or otherwise manipulated or controlled the image while it was on his screen. That defendant accessed and displayed the site, without more, is not enough. Thus, the evidence was insufficient to show that defendant knowingly possessed the “School Backyard” Web page, either in the form of the cached file or as an image on his screen. It follows, therefore, that there was not sufficient evidence that defendant procured the “School Backyard” page; defendant did not “get possession of [the page] by particular care or effort” (Keyes, 75 NY2d at 348 [internal quotation marks omitted]) as by downloading it. Thus, defendant’s convictions under counts 1 and 142 should be reversed.

We agree with the Appellate Division, however, that defendant was properly convicted of promotion and possession of the “Arina” video, and possession of 132 images of child pornography recovered from the unallocated space on his computer. Investigator Friedman’s testimony established that at some point defendant downloaded and/or saved the video and the images, thereby committing them to the allocated space of his computer, prior to deleting them. Thus, viewing the evidence in the light most favorable to the People, a rational fact-finder could conclude that defendant acquired the video and exercised control over it and the images (see People v Contes, 60 NY2d 620, 621 [1983]). That defendant did so knowingly was conclusively established by, among other things, copious evidence of his persistent pattern of browsing for child pornography sites; his meticulous cataloguing of thumbnail images of young, provocatively dressed girls; his deletion of illegal images and retention of legal ones; and defendant’s messages to “P.B.” discussing the pornographic content of the images and sites defendant perused.

Defendant also contends that County Court erred in permitting the People to amend count 2 of the indictment and that counsel provided ineffective assistance. We have considered these arguments and find them to be without merit.

Accordingly, the order of the Appellate Division should be modified by dismissing counts 1 and 142 of the indictment and remitting to County Court for resentencing and, as so modified, affirmed.

Graffeo, J. (concurring in result only).

The majority holds that it is legal in New York to knowingly access and view child pornography on the Internet. I do not support this view and write separately to explain what I believe is the reasonable application of the relevant Penal Law provisions and the important public policies underlying their enactment. It is important to emphasize that this case deals with issues pertaining to child pornography on the Internet, not Web sites containing the sexual activities of adults. There is a fundamental reason that the law handles these two topics differently—children are legally incapable of consenting to engage in such sexual behaviors.

I

Children are among the most vulnerable citizens in our society. For whatever reason, an unfortunate aspect of the human condition causes certain adults to prey upon children for purposes of sexual gratification or financial gain in ways that subject children to serious psychological damage and, in many cases, physical abuse and related medical problems. The persons who produce and promote child pornography derive perverse satisfaction from compelling children to engage in sexually suggestive conduct or actual sexual contact with other children, adults, animals or other forms of deviant conduct that is undeniably detrimental to them, particularly for prepubescent children. Worse yet, they photograph, record or videotape these encounters for future public viewing. The availability of computer technology and the ease of digital photography has made the publication and sharing of child pornography available on a global scale previously unknown in our society. The harm inflicted on child victims, many of whom are less than 10 years of age, is well documented. Granted, the case before us does not involve the production or dissemination of child pornography; rather, it addresses whether knowingly viewing child pornography on the Internet is subject to criminal penalties under the Penal Law in New York. Because I conclude that the Legislature recognized that a child is victimized each time an image of the child is knowingly viewed, I believe that this conduct falls within the reach of our statutory prohibition.

Decades ago, the New York Legislature recognized the gravity of this form of child abuse. It outlawed the “promotion” of these materials in 1977 (see L 1977, ch 910, § 2; see Penal Law § 263.15) in an effort to “eradicate child pornography” in all its forms and “thereby combat the sexual exploitation of children” (People v Keyes, 75 NY2d 343, 346 [1990]). The promotion statutes were obviously aimed at the producers, distributors and sellers of these products, but the word “promote” was broadly defined and this Court determined that the term also included the “acquisition” of such material for personal consumption (id. at 348; Penal Law § 263.00 [5]). Even though personal computers and the Internet were not widely available to the public at that time, the Legislature presciently used broad language that we eventually determined covered digital computer images (see People v Fraser, 96 NY2d 318, 327-328 [2001]).

However, the 1977 legislation did not criminalize the possession of child pornography, apparently because there was then a lingering question whether mere possession was afforded some protection by the First Amendment. That notion was quickly dispelled as it was firmly established that child pornography could be declared illegal without offending either the federal or state constitutions (see e.g. New York v Ferber, 458 US 747, 764 [1982]; Osborne v Ohio, 495 US 103, 111 [1990]; People v Ferber, 57 NY2d 256, 259 [1982]).

In the absence of constitutional impediments and in light of the expanding market for child pornography that continued to flourish despite the 1977 ban on promotion, the Legislature took further action in 1996 to criminalize the possession of child pornography (see L 1996, ch 11, § 1). The legislation was proposed to confront the reality that “society cannot hope to eradicate this evil unless the market for these perverse materials is destroyed” (Governor’s Approval Mem, Bill Jacket, L 1996, ch 11, at 9, 1996 McKinney’s Session Laws of NY, at 1845). The targets of this legislation were the “consumers” of child pornography who fueled the expansion of the production of child pornography and, in many instances, made its creation highly profitable. Consistent with the expansive strategy effected for the promotion statutes in 1977, the Legislature criminalized the knowing “possession or control [of] any performance which includes sexual conduct by a child less than sixteen years of age” in Penal Law § 263.16.

II

Although it is not necessary for our Court to address these issues to resolve this case, the majority has decided to consider whether the statutory bans on acquiring and possessing embrace the viewing of images of child pornography that are accessed on the Internet. The majority answers this question in the negative without engaging in an examination of the statutory text or purpose. Instead, it declares that viewing child pornography on the Internet is permissible and that “some affirmative act is required (printing, saving, downloading, etc.) to show that [the] defendant in fact exercised dominion and control over the images that were on his screen” (majority op at 303).

The result of the majority’s analysis is that the purposeful viewing of child pornography on the Internet is now legal in New York. A person can view hundreds of these images, or watch hours of real-time videos of children subjected to sexual encounters, and as long as those images are not downloaded, printed or further distributed, such conduct is not proscribed. I am compelled to disagree because I believe that our Penal Law outlaws this purposeful activity.

ra

I begin, as we must, with the text of the statute. Penal Law § 263.16 is directed at two distinct types of conduct: possession or control of child pornography. The word “possess” is restricted by language in another provision of the Penal Law to “tangible property” (Penal Law § 10.00 [8]). Since child pornography on the Internet is digital in format, it is intangible in nature and therefore cannot be “possessed” as that term is currently defined by the Penal Law. It goes without saying that in light of the majority’s decision, the Legislature needs to revisit this definition if its intention has been to extend the scope of proscribed conduct to the intentional Internet viewing of child pornography.

But the breadth of the term “control” is not so limited by statutory definition. Consequently, this term should be interpreted in the manner that it is commonly understood (see e.g. People v Quinto, 18 NY3d 409, 417 [2012]). The usual meaning of “control” is to have power over or the ability to manage (see e.g. Webster’s Third New International Dictionary, Unabridged [Merriam-Webster 2012], control, available at http:// unabridged.merriam-webster.com; Black’s Law Dictionary 378 [9th ed 2009]). The question, then, is does a person exercise power—that is, control—over child pornography when that person knowingly accesses and views such material on the Internet? In my view, this question can be answered in the affirmative.

It is certainly possible to control something that is intangible—a fact that the majority concedes in accepting that Penal Law § 263.16 applies to the saving or downloading of child pornography onto a computer hard drive. When using the Internet, a person must first decide to search for Web sites that contain child pornography and, once they Eire located, to choose a pEirticular item to observe. Once the desired image appears on the screen, the user must then engage in a variety of decisions that exemplify control over the displayed depiction: continue looking at the image or delete it; decide how long to view it; once the viewing is complete, to keep the image in its own tab or browser window, or simply move on to some other image or Web page; save the image to the hEird drive or some other device; or print it in a tangible format. Through this process, the viewer exercises power over the image because he manages and controls what happens to it (see Commonwealth v Diodoro, 601 Pa 6, 18, 970 A2d 1100, 1107 [2009] [“intentionally seeking out child pornography and purposefully making it appear on the computer screen . . . constitutes knowing control”], cert denied 558 US —, 130 S Ct 200 [2009]).

A few relatively common examples of control over Web pages illustrate this point. When the Internet is used to conduct online banking, such as to transfer funds between accounts, the user exercises control over the Web site displayed on the screen by, for example, authorizing the transfer. The same is true about shopping on the Internet—a person enters ordering and payment information and then approves the transaction. Even when browsing news Web sites, the user controls the images that appear on the screen by deciding whether to keep reading an article, click a hyperlink, go to another site or exit the browser altogether.

Hence, the use of the term “control” in the statute can reasonably be interpreted to cover precisely what the majority says it does not—consciously acquiring and viewing child pornography on the Internet. If the majority’s concern in adopting the limited scope of “possession or control” is to prevent the prosecution of individuals who inadvertently or unintentionally access such images on their computers, then it is misplaced. I certainly share the concern—and there is no question that the Legislature did not intend that persons who view such material accidentally be prosecuted. The Legislature did not effectuate that intent through the “possession or control” requirement, nor is it necessary to adopt the majority’s unduly restricted interpretation of that element to ensure that such conduct is not criminalized.

Under Penal Law § 263.16, the People must establish that defendant knowingly possessed or controlled the images, “knowing the character and content thereof.” The People can prove this mens rea element through conduct such as that imported by the majority into the control element—through storage, printing, forwarding and the like. But this is not the only conduct that would support an inference that the possession or control was “knowing.” That images were intentionally accessed can be inferred in any number of ways, such as evidence establishing the number of items viewed on certain occasions, the frequency with which such images were viewed, whether other images have been saved and the length of time spent browsing for child pornography. This analysis regarding the consistency and quantity of viewings will shield the inadvertent viewer of child pornography from prosecution. The more times a person accesses and views pornographic images of children, the less likely it is that the behavior was innocent or inadvertent. And, of course, the number of persons who have access to a certain computer and the availability of passwords or other personal information are also relevant inquiries. By adopting a narrow interpretation of the possession or control requirement, the majority has effectively conflated the mens rea element with the control element, resulting in a holding that explicitly legalizes the acquisition and viewing of child pornography over the Internet even when that activity is clearly intentional. This result is directly at odds with the relevant statutory language.

IV

My suggested textual analysis of the “possession or control” requirement is consistent with the complementary purposes for which the 1977 and 1996 legislation was enacted. When the promotion statutes were first created, the Legislature declared that the “public policy of the state demands the protection of children from exploitation through sexual performances” since the sale of child pornography was “abhorrent to the fabric of our society” (L 1977, ch 910, § 1). It is beyond dispute that exploitation occurs regardless of whether child pornography is in a tangible format or on line, and an image does not become any less exploitive because it is viewed on a computer. The presence of an image on the Internet arguably exacerbates the harm inflicted on the child victim given its global availability and ease of access. And with the high quality of digital photography, the identity of children subjected to this sexual abuse is more apparent and may be preserved for their entire lives.

This is why in 1996—after the advent of widespread Internet usage and the digital transformation of society—the Legislature sought to ban the purposeful possession of child pornography. “Permitting the possession of child pornography is, in fact, extending permission to the sexual exploitation of children; after all, some child was indeed exploited in the production of such materials” (Senate Introducer’s Mem in Support, Bill Jacket, L 1996, ch 11, at 7, 1996 McKinney’s Session Laws of NY, at 1982). Possession alone, without the conditions imposed by the majority, was seen as the scourge to be alleviated: “Someone who possesses child pornography does so at the expense of an exploited child, and society cannot hope to eradicate this evil unless the market for these perverse materials is destroyed” (Governor’s Approval Mem, Bill Jacket, L 1996, ch 11, at 9, 1996 McKinney’s Session Laws of NY, at 1845).

It is important to note that a person need not purchase child pornography in order to violate the statutory ban. The protection of children was the impetus for the statutes and whether or not the viewer pays for an image does not lessen the emotional and physical damage experienced by the child. I concur with the broad consensus that a child is not just exploited when he or she is photographed or filmed while engaging in sexual activity (see e.g. New York v Ferber, 458 US at 759; Osborne v Ohio, 495 US at 111; Child Pornography Prevention Act of 1996, Pub L 104-208, § 121, 110 US Stat 3009-26). That child is violated each time the image is accessed and viewed simply because he or she never consented—and could not consent—to the dissemination of that image. Irreparable harm occurs even if no money changes hands.

I part company with the majority on this critical point. The market for child pornography enlarges with the knowing viewing of these images, regardless of whether a price has been paid by the viewer and regardless of whether the image is downloaded or printed, because the more frequent the images of children engaged in sexual conduct are accessed, the more the creators produce to satisfy the growing demand, which results in more children being coerced and groomed for the sex trade (see e.g. United States v Norris, 159 F3d 926, 930 [5th Cir 1998]; U.S. Dept of Justice, The National Strategy for Child Exploitation Prevention and Interdiction: A Report to Congress, at 3 [2010]). And, perhaps most tragically, some children abused in this fashion become abusers themselves later in life, creating a vicious cycle of violence against children that the Internet helps to perpetuate.

Furthermore, there’s no question that the purveyors of child pornography are experts at marketing their products. Electronic availability provides virtually instantaneous access to a wide array of child pornography in a relatively anonymous fashion— something that is presumably far easier, quicker and safer to the consumer than searching for a person or place that sells such material in a physical format. Images of children in sexually suggestive poses are made available at no cost on the Internet in hopes of whetting the appetite of viewers to move on to paid subscription Web sites that display more graphic portrayals of children having sex. From the viewpoint of these child victims, there is no such thing as a harmless viewing of their images. In addition, the expansion of the consumer pool eventually fuels the profit-making motive behind the distribution of child pornography and causes “an explosion in the market for child pornography, leading, in turn, to increased access, creation, and distribution of these abusive images” (U.S. Dept of Justice, The National Strategy for Child Exploitation Prevention and Interdiction: A Report to Congress, at 138 [2010] [emphasis omitted]). The majority’s decision to allow the knowing acquisition and viewing of child pornography will, unfortunately, lead to increased consumption of child pornography by luring new viewers who were previously dissuaded by the potential for criminal prosecution. I firmly believe that the Legislature recognized the pervasive nature of this criminal activity when it drafted the statutory text.

The facts of the case before us demonstrate why the Legislature believed that it was so important to criminalize this type of conduct. The “School Backyard” images were offered for free to viewers in order to entice Web visitors to pay to enter the site for access to additional child pornography. Although this case involves the defendant’s viewing of no-fee pornographic images of children on the Internet, the majority does not—and cannot—dispute that the Legislature did not make a distinction between the intentional viewing of child pornography on the Internet that is paid for or viewed at no cost. I believe that the Legislature had ample justification for criminalizing all purposeful acquisition and consumption of child pornography irrespective of whether or not it was purchased. I therefore would hold that knowingly accessing and viewing child pornography on the Internet constitutes criminal conduct under our Penal Law.

Smith, J. (concurring).

I join Judge Ciparick’s majority opinion, and add a few words to respond to Judge Graffeo’s thoughtful concurrence.

I agree that the exploitation of children by child pornographers is an appalling evil; on this, I have no doubt that the Court is unanimous. I also acknowledge that, as Judge Graffeo says, Penal Law §§ 263.15 and 263.16 are designed to target the consumers of child pornography, in the hope of eliminating the market for it. Indeed, under section 263.15 as we interpreted it in People v Keyes (75 NY2d 343 [1990]), the punishment for consumers is severe: One who merely obtains child pornography for his personal use is guilty of “promoting” it, a class D felony.

Judge Graffeo argues, in substance, that we can best effectuate the Legislature’s intention by reading the statutes expansively, to include as many “consumers” as the statutory language can reasonably be interpreted to permit. I do not agree.

Under Judge Graffeo’s reading, someone who does no more than click on a link for the purpose of looking at a pornographic picture for free—someone who has never interacted with a child victim, has never copied, downloaded or saved a pornographic picture of a child, and has never put a penny in the pocket of a child pornographer—is subject to up to seven years in prison for a first offense (see Penal Law § 70.00 [2] [d]). This is surely a stringent punishment for someone whom many would think more pathetic than evil. Nor can we safely assume that bringing as many consumers as possible within the reach of the law is the most effective way to lessen or eliminate the trade: A policy of draconian enforcement directed at the most minor and peripheral of users is perhaps no more likely to eliminate child pornography than a similar policy would be to eliminate illegal drugs.

These questions are for the Legislature to decide, of course. But we should not assume that the Legislature, where it has not plainly said so, intended to criminalize all use of child pornography to the maximum extent possible. I agree with Judge Graffeo that the statutes, as written, draw no line between consumers who pay for images and those who look at them for free (see concurring op of Graffeo, J., at 312); to me, however, this is a reason to be restrained, rather than aggressive, in deciding what acts have been made criminal.

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

Order modified, etc.

      . As the Appellate Division noted, it is unclear whether these messages were ever sent.

      . County Court found defendant not guilty of counts 24, 28, 49, 97, 101, 102 and 140.

      . “Promote” is additionally defined in that section as to “manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same” (Penal Law § 263.00 [5]).

      . One legal commentator has described the distinction between these two approaches, deemed respectively, the “Present Possession” approach and “the Evidence Of’ approach, as follows:
      “The first approach places legal significance on the images found in a cache . . . The second, alternative approach places legal significance on the images that the computer user sought out and placed on his computer screen. This approach holds that the copies of the images found in a cache constitute evidence of some prior (but no less real) knowing possession” (Ty E. Howard, Don’t Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech LJ 1227, 1254, 1255 [Fall 2004]).

      . See e.g. U.S. Dept of Justice, The National Strategy for Child Exploitation Prevention and Interdiction: A Report to Congress, at 9 (2010), available at http://www.justice.gov/psc/docs/natstrategyreport.pdf.

      . If legalization of the viewing of Internet child pornography was not unfortunate enough, there is an aspect of the majority’s decision that is somewhat ironic—it is not necessary for us to examine the issues raised in the majority opinion. Defendant was not charged with looking at the “School Backyard” images on the Internet. The theory of the prosecution was that he knowingly caused the images to be placed into the Internet cache (for count 1, charging promotion) and knowingly possessed them during a certain period of time that they were in the cache (for count 142, charging possession). The People introduced no proof at trial that defendant was aware of how caching worked, they conceded that it is an automatic process that most computer users are unfamiliar with, and the prosecutor told the judge that defendant did not, in fact, realize that the images were being saved in the cache. Based on those facts and the People’s limited theory of the case, there is insufficient evidence that defendant knowingly procured or possessed the “School Backyard” images so I agree that counts 1 and 142 require dismissal. However, if the People’s theory had been different, I may well have found that defendant’s accessing and viewing of pornographic images of children, along with the thousands of suggestive photos that he catalogued and saved, and the numerous times that his computer recorded his viewings, supported an inference that defendant knowingly obtained and possessed the “School Backyard” images. With regard to the other counts, I concur that those convictions should be affirmed for the reasons stated by the majority.

        (n. cont’d)

      . Penal Law § 263.15 forbids the promotion of child pornography. “Promotion]” is defined to cover a person who “procure[s]” such material (Penal Law § 263.00 [5]). We have held that this includes the act of acquiring child pornography for personal use (see People v Keyes, 75 NY2d at 348). To “acquire” means to “get as one’s own” or to “come into possession or control of” (see Merriam-Webster’s Collegiate Dictionary [11th ed 2012], acquire, available at http://unabridged.merriam-webster.com/collegiate.htm).

      . See Bentovim and Williams, Children & Adolescents: Victims Who Become Perpetrators, 4 Advances in Psychiatric Treatment 101, 102 (1998); Glasser et al, Cycle of Child Sexual Abuse: Links Between Being a Victim & Becoming a Perpetrator, 179 Brit J Psychiatry 482, 492-493 (2001).

      . As of 2010, both state and federal law enforcement officials “universally” reported “dramatic increases” in the number of pornographic images of children available on the Internet, the number of offenders and the number of child victims. They also observed “increase[s] in the sadistic and violent conduct depicted in child pornography images and [reported] that they are encountering more young victims than before—particularly infants and toddlers” (U.S. Dept of Justice, The National Strategy for Child Exploitation Prevention and Interdiction: A Report to Congress, at 9 [2010]; see also id. at 11).

        (n. cont’d)


author: Read, J.

text:
    [970 NE2d 422, 947 NYS2d 399]
    The People of the State of New York, Respondent, v Malik Yusuf, Also Known as Yusuf M. Ashford, Appellant.
    Argued May 3, 2012;
    decided May 31, 2012

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Mark W. Zeno and Robert S. Dean of counsel), for appellant.
    I. The court improperly sentenced appellant as a second felony drug offender whose prior felony conviction was a violent felony offense because (a) the out-of-state North Carolina predicate was broader in scope than any New York State felony, and (b) the prior violent felony was an out-of-state conviction, and Penal Law § 70.02, incorporated by reference by Penal Law § 70.70 (1) (c), limits enhanced sentencing to only those defendants that have been previously convicted of a prior New York violent felony. (People v Concepcion, 17 NY3d 192; People v Gonzalez, 61 NY2d 586; People v Muniz, 74 NY2d 464; People v LaFontaine, 92 NY2d 470; People v Smith, 79 NY2d 309; People v Fata, 184 AD2d 206; People v Quinn, 186 AD2d 691; Matter of Robert C., 67 AD3d 790; Matter of Niazia F., 40 AD3d 292; People v Holder, 5 Misc 3d 1029[A], 2004 NY Slip Op 51614[U].) II. It was error to deny appellant’s motion to suppress the physical evidence seized following the execution of a search warrant, without a hearing, because (a) appellant could not challenge the People’s contention that the warrant justified his search and arrest since he was forbidden access to it, and (b) appellant timely moved to renew that motion upon receipt of the search warrant and as additional facts became available. (People v Mendoza, 82 NY2d 415; People v Gruden, 42 NY2d 214; People v Burton, 6 NY3d 584; People v Bryant, 8 NY3d 530; People v Hightower, 85 NY2d 988; People v Mothersell, 14 NY3d 358; Ybarra v Illinois, 444 US 85; People v Dodt, 61 NY2d 408; People v Mabeus, 47 AD3d 1073; People v Clark, 88 NY2d 552.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Nicole Coviello and Eleanor J. Ostrow of counsel), for respondent.
    I. The court properly adjudicated defendant a second felony drug offender previously convicted of a violent felony offense. (People v Austin, 161 AD2d 275; Carney v Philippone, 1 NY3d 333;
      Consedine v Portville Cent. School Dist., 12 NY3d 286; Matter of Albano v Kirby, 36 NY2d 526; People v Morse, 62 NY2d 205; People v Kisina, 14 NY3d 153; Matter of Caraballo v Community School Bd. Dist. 3, 49 NY2d 488; People v Mills, 11 NY3d 527; United States v Ron Pair Enterprises, Inc., 489 US 235; Riley v County of Broome, 95 NY2d 455.) II. The court properly denied defendant’s motion to suppress physical evidence without a hearing. Moreover, defendant’s attempts to renew that motion were properly rejected. (People v Mendoza, 82 NY2d 415; People v Gruden, 42 NY2d 214; People v Jones, 95 NY2d 721; People v France, 12 NY3d 790; People v Lopez, 5 NY3d 753; People v Hightower, 85 NY2d 988; People v Mattocks, 12 NY3d 326; People v Landy, 59 NY2d 369; People v Lawrence, 64 NY2d 200; People v Clark, 88 NY2d 552.)
   OPINION OF THE COURT

Read, J.

On January 10, 2008, the police executed a no-knock search warrant at an apartment where defendant Malik Yusuf resided, leading to his arrest and subsequent conviction after a jury trial of three drug crimes—a class B felony, a class C felony and a class A misdemeanor. Prior to sentencing, the People filed two statements of predicate felony conviction. The first, filed on December 17, 2008, the day after defendant’s conviction, alleged that he had been convicted in the State of North Carolina of the offense of “Robbery with [a] Dangerous Weapon,” which made him a second felony drug offender whose prior felony conviction was a violent felony offense (see CPL 400.21; Penal Law § 70.70 [1] [c]; [4]). The second, filed on January 20, 2009, alleged that defendant had been convicted in the State of North Carolina of the crime of “Possession with Intent to Sell and Deliver a Controlled Substance,” making him a second felony drug offender (see CPL 400.21; Penal Law § 70.70 [1] [b]; [3]).

Defendant sought an order declaring that neither statement created a basis for Supreme Court to determine that he was subject to an enhanced sentence as a second felony drug offender. With respect to the first statement of predicate felony conviction, he argued that Penal Law § 70.70 (4) does not authorize an enhanced sentencing range for a felony drug offender whose alleged prior violent felony conviction occurred in a foreign jurisdiction—i.e., outside New York. After analysis of the relevant statutory provisions, considered as a whole and in light of the policy purposes to be served by the Drug Law Reform Act of 2004 (the DLRA), the judge held otherwise in a decision dated February 26, 2009 (22 Misc 3d 1127[A], 2009 NY Slip Op 50311[U], *8 [2009]).

Supreme Court then ruled that the North Carolina robbery statute is broader on its face than any New York felony. As a result, it would be possible for someone to be convicted of the North Carolina crime without having engaged in conduct that would constitute a robbery in New York. The judge concluded, however, that defendant’s North Carolina conviction for robbery with a dangerous weapon, “as clarified by the Indictment, . . . [was] equivalent to Robbery in the First Degree as well as Robbery in the Second and Third Degrees under New York law” (2009 NY Slip Op 50311[U], *10 [emphasis added]). Given this disposition, he did not address the second statement of predicate felony conviction filed by the People.

Consistent with this decision, Supreme Court on March 3, 2009 adjudicated defendant a second felony drug offender previously convicted of a violent felony (see CPL 400.21 [7] [c]; Penal Law § 70.70 [4]). The judge sentenced defendant on his class B felony conviction to a determinate prison term of six years, followed by IV2 years of postrelease supervision, to run concurrently with the sentences imposed on him for the two lesser drug crimes of which he was convicted (see Penal Law § 70.70 [4] [b] [i]). On defendant’s appeal, the Appellate Division affirmed (82 AD3d 424 [1st Dept 2011]). A Judge of this Court subsequently granted defendant leave to appeal (17 NY3d 810 [2011]).

L

Penal Law § 70.70 (1) (b) defines a “[s]econd felony drug offender” as a person convicted of a non-class A felony who is a “second felony offender” as that term is defined in Penal Law § 70.06 (1). That provision, as relevant here, defines a “second felony offender” as someone who has previously been convicted of a felony in New York, or somewhere else if the foreign offense is equivalent to a felony in New York (see Penal Law § 70.06 [1] [b] [i] [stating that “(f)or the purpose of determining whether a prior conviction is a predicate felony conviction . . . (t)he conviction must have been in this state of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year . . . was authorized and is authorized in this state irrespective of whether such sentence was imposed”]). Penal Law § 70.70 (1) (c) defines a “[v]iolent felony” for sentencing purposes as having “the same meaning as that term is defined in” Penal Law § 70.02 (1), which lists New York felony offenses by class. Section 70.70 then sets out the enhanced sentencing range for those second felony drug offenders previously convicted of a non-violent felony (Penal Law § 70.70 [3]); and a harsher sentencing range for those second felony drug offenders previously convicted of a violent felony (Penal Law § 70.70 [4]).

Defendant argues that because Penal Law § 70.70 (1) (c) cross-references Penal Law § 70.02, a provision that enumerates only New York crimes, an out-of-state felony can never qualify as a violent felony for purposes of enhanced sentencing under Penal Law § 70.70 (4). We do not agree. As an initial matter, the statute’s “plain meaning” does not support defendant’s position, as he argues. Penal Law § 70.70 (4) applies to “a second felony drug offender whose prior felony conviction was a violent felony” (Penal Law § 70.70 [4] [b] [emphasis added]). As noted earlier, Penal Law § 70.70 (1) (b) cross-references Penal Law § 70.06 (1) when defining a “[s]econd felony drug offender,” and this provision, unlike section 70.02, encompasses out-of-state felonies.

Importantly, Penal Law § 70.70 (4) also cross-references CPL 400.21. And section 400.21 mandates the use of out-of-state felony convictions when adjudicating a defendant a second felony drug offender previously convicted of a violent felony. Specifically, section 400.21 in three separate places instructs the prosecutor or the sentencing court to determine whether a defendant has been convicted of a qualifying foreign crime (see CPL 400.21 [2] [requiring a statement of predicate felony conviction to specify “whether the predicate felony conviction was a violent felony as that term is defined in (Penal Law § 70.02 [1]), or in any other jurisdiction of an offense which includes all of the essential elements of any such felony for which a sentence to a term of imprisonment in excess of one year . . . was authorized and is authorized in this state regardless of whether such sentence was imposed”]; CPL 400.21 [4] [in a case where there is no further hearing after a preliminary examination, requiring the sentencing court to make a finding as to whether the defendant was previously convicted of a violent felony in New York or any other jurisdiction]; CPL 400.21 [7] [c] [in a case where there is a hearing, requiring the sentencing court to make a finding as to whether the defendant was subject to a predicate felony conviction, including a finding as to whether the predicate felony conviction was for a violent felony in New York or any other jurisdiction]).

When enacting the DLRA, the Legislature created Penal Law § 70.70 to mandate enhanced sentences for second felony drug offenders, and amended CPL 400.21 in the ways described above so as to supply procedures for sentencing defendants subject to this new Penal Law provision (see L 2004, ch 738, §§ 18, 36). Considering section 70.70 (4) in light of Penal Law § 70.06 (1) and CPL 400.21 (2), (4) and (7) (c), we conclude that the Legislature meant for prosecutors and sentencing courts to take foreign violent felony convictions into account when determining a defendant’s sentencing status, notwithstanding the ambiguity created by the reference in section 70.70 (1) (c) to Penal Law § 70.02. This is, in our view, the more sensible and integrated reading of the interrelated statutory text.

Our interpretation also comports more closely with the policy underlying the DLRA than does defendant’s approach. As Supreme Court pointed out, while the DLRA’s “general purpose . . . was to reduce sentences for drug offenders, the Act also modestly increased minimum sentences for some drug offenders with prior violent felony convictions. In this regard, the Act clearly distinguishfed] ‘non-violent’ drug offenders from offenders with a violent felony history” (2009 NY Slip Op 50311[U], *7). Yet, defendant’s construction of Penal Law § 70.70 “would have the DLRA apply . . . increased sentences for drug offenders with prior non-violent [foreign] felony convictions . . . , but, incongruously,” not to offenders with prior violent foreign felony convictions (id.). Defendant suggests that the Legislature may have excluded foreign violent felony convictions from the ambit of section 70.70 so as “to simplify the ofttimes complicated process of determining whether a foreign conviction qualifies as a New York violent felony.” But figuring out whether a foreign conviction qualifies as a non-violent New York felony entails an arguably equally “complicated process” in many cases.

Finally, our view of section 70.70 (4) is consistent with the Legislature’s general sentencing design for recidivist offenders; specifically, article 70 is replete with provisions directing the use of foreign convictions as predicate offenses for purposes of enhancing sentences (see Penal Law § 70.04 [1] [b] [i] [second violent felony offender]; § 70.06 [1] [b] [i] [second felony offender]; § 70.07 [3] [second child sexual assault felony offender]; § 70.08 [1] [b] [persistent violent felony offender]; § 70.10 [1] [b] [persistent felony offender]; § 70.70 [1] [b]; § 70.71 [1] [b] [second felony drug offender]; § 70.80 [1] [c] [predicate felony sex offender]). As Supreme Court observed, to construe Penal Law § 70.70 in the manner advanced by defendant, “one would have to believe that among all of the Penal Law provisions where a particular class of foreign convictions ‘counts’ in raising an offender’s sentence,” the Legislature without explanation and for no apparent reason singled out second felony drug offenders with prior out-of-state violent felony convictions “for more lenient treatment” (2009 NY Slip Op 50311[U], *8).

IL

An out-of-state felony conviction qualifies as a predicate felony under New York’s sentencing statutes only if it is for a crime “whose elements are equivalent to those of a New York felony” (People v Gonzalez, 61 NY2d 586, 589 [1984]). “As a general rule, [the court’s] inquiry is limited to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes” (People v Muniz, 74 NY2d 464, 467-468 [1989], citing People v Olah, 300 NY 96, 98 [1949]). When a statute-to-statute comparison reveals differences in the elements such that it is possible to violate the foreign statute without engaging in conduct that is a felony in New York, the foreign statute may not serve as a predicate (see Muniz, 74 NY2d at 469-470).

And this is not a case where,

“[a]s an exception to the Olah rule ... a sentencing court [may] go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction [because] the statute renders criminal not one act but several acts which, if committed in New York, would in some cases be felonies and in others would constitute only misdemeanors” (Gonzalez, 61 NY2d at 590).

Indeed, we have remarked that where there are differences in the intent elements of the New York and out-of-state crimes, the trial court may not consider the recitals in the accusatory instrument underlying the foreign conviction when resolving a defendant’s status as a predicate felon (Muniz, 74 NY2d at 469-470; see also Somerville v Conway, 281 F Supp 2d 515, 522 [ED NY 2003] [“Where the difference between the definition of the foreign crime and the New York crime turns on ‘a particular aggravating circumstance’ such as intent, recourse to the indictment is improper because the aggravating circumstance was not relevant to the defendant’s guilt or innocence of the foreign crime” (citing Muniz)]). Here, Supreme Court examined the indictment underlying defendant’s robbery conviction in North Carolina so as to ascertain whether his intent, as a factual matter, satisfied New York’s intent element for robbery. This was impermissible.

Next, CPL 470.15 (1) bars the Appellate Division “from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court, and CPL 470.35 (1) grants us no broader review powers in this regard” (People v Concepcion, 17 NY3d 192,195 [2011] [discussing People v LaFontaine (92 NY2d 470 [1998])]). As a result, we may not review Supreme Court’s determination, which favored defendant, that the North Carolina robbery statute is broader than any New York felony. Finally, we have examined defendant’s claims of error relating to Supreme Court’s suppression rulings and consider them to be without merit.

Accordingly, the order of the Appellate Division should be modified by remitting to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

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

Order modified, etc.