text:
    [949 NE2d 462, 925 NYS2d 371]
    Bessemer Trust Company, N.A., Respondent, v Francis S. Branin, Jr., Appellant.
    Argued March 21, 2011;
    decided April 28, 2011

      POINTS OF COUNSEL

      Bond, Schoeneck & King, PLLC, New York City (Louis P DiLorenzo, Michael I. Bernstein and Michael P. Collins of counsel), for appellant.
    I. The District Court drew its own line in contravention of the Mohawk doctrine. (Mohawk Maintenance Co. v Kessler, 52 NY2d 276; Von Bremen v MacMonnies, 200 NY 41.) II. A meaningful approach must take into account the dictates of the Mohawk doctrine as clarified by this Court. (Mohawk Maintenance Co. v Kessler, 52 NY2d 276; Von Bremen v MacMonnies, 200 NY 41; SEC v Capital Gains Research Bureau, Inc., 375 US 180; Tactica Intl., Inc. v Atlantic Horizon Intl., Inc., 154 F Supp 2d 586; Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 112.)

      Chadbourne & Parke LLP, New York City (Donald I. Strauber, Mary T. Yelenick and Marcello M. Blackburn of counsel), for respondent.
    I. The District Court correctly held that Francis S. Branin, Jr. violated New York law when he caused the Palmer family accounts to move to Stein Roe Investment Counsel LLC. (Mohawk Maintenance Co. v Kessler, 52 NY2d 276; Von Bremen v MacMonnies, 200 NY 41; Hyde Park Prods. Corp. v Lerner Corp., 65 NY2d 316; Borne Chem. Co. v Dictrow, 85 AD2d 646; Delta Resources v Harkin, 118 AD2d 133; Brasscrafters, Inc. v Ehrlich, 109 AD2d 724.) II. The District Court’s interpretation of Mohawk Maintenance Co. v Kessler (52 NY2d 276 [1981]) is sound as a matter of New York law and public policy. (Von Bremen v MacMonnies, 200 NY 41; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Matter of Co-operative Law Co., 198 NY 479.)
   OPINION OF THE COURT

Ciparick, J.

The United States Court of Appeals for the Second Circuit has certified the following question for our consideration: “What degree of participation in a new employer’s solicitation of a former employer’s client by a voluntary seller of that client’s good will constitutes improper solicitation?” (Bessemer Trust Co., N.A. v Branin, 618 F3d 76, 94 [2d Cir 2010].)

Specifically, the Second Circuit seeks our guidance on whether the following two sets of actions, taken together, make out “improper solicitation” under New York law:

“(1) the active development and participation by the seller, in response to inquiries from a former client whose good will the seller has voluntarily sold to a third party, in a plan whereby others at the seller’s new company solicit a client, and (2) participation by the seller in solicitation meetings where the seller’s role is largely passive.” (Id.)

I.

Plaintiff Bessemer Trust Company, N.A. (Bessemer) is a privately owned wealth management and investment advisory firm headquartered in New York City. Founded in 1907, Bessemer provides services to high net worth individuals, families, and institutional clients. Defendant Francis S. Branin, Jr. is an investment portfolio manager. In 1977, Branin joined the New York City based investment management firm Brundage, Story & Rose, LLC (Brundage) where he too advised high net worth clients. Branin became a principal at Brundage in 1982 and served as its chief executive officer from 1996 through October 2000.

By purchase agreement dated August 18, 2000 (the Purchase Agreement), the shareholders of Brundage agreed to sell the assets of their firm, including Brundage’s client accounts and related good will, to Bessemer for more than $75 million. Bessemer acquired these assets in October 2000 and Branin, along with the seven other Brundage principals, began to work at Bessemer at that time.

The Purchase Agreement imposed no express restrictive covenants on the Brundage principals. They were at-will employees of Bessemer with no ownership interest in the newly formed firm. The Purchase Agreement further provided that only $50 million of the purchase price was payable up front. Branin, the largest Brundage shareholder, received more than $9.1 million of this amount. The remainder of the purchase price was conditional. If the Brundage principals were able to achieve certain thresholds related to client retention, revenue enhancement, and reduction of expenses, they were eligible to receive the remainder of the purchase price in four subsequent installments. In September 2001 and in April 2002, the Brundage principals, having met designated benchmarks, qualified for the first two contingency payments. In total, Branin received over $15 million for the sale of his interest in Brundage between October 2000 and April 2002. Branin and the rest of the Brundage principals were ineligible for the remaining two contingency payments.

Branin soon became unhappy with his role at Bessemer. He disliked the fact that Bessemer management had reduced his responsibilities and excluded him from key management meetings. As a result, Branin started to explore different opportunities. To that end, from November 2001 to June 2002, Branin periodically met with William Rankin, the president and chief executive officer of Stein Roe Investment Counsel LLC (Stein Roe), a wealth management firm, to discuss the possibility of his employment. The two discussed Branin’s desired level of compensation and how such compensation would be structured. Rankin was aware that Bessemer had recently acquired Brundage and understood from these conversations that if Branin were to join Stein Roe, he could not actively solicit his clients to transfer their accounts from Bessemer to Stein Roe.

By late May or early June, Branin had made the decision to join Stein Roe. On July 12, 2002—less than two years after Bessemer acquired Brundage—Branin resigned from Bessemer. Ten days later, by letter dated July 22, 2002, Stein Roe formally offered Branin the position of senior vice-president and principal. Branin commenced his employment with Stein Roe on July 29, 2002.

Branin did not notify his existing clients about his decision to resign from Bessemer and join Stein Roe. Bessemer instructed Branin to prepare a list of his clients with the pertinent account holder information so that Bessemer could transition these accounts to other investment advisors at the firm. Branin complied with this directive. Shortly after reviewing the list of Branin’s accounts, Bessemer mailed letters to Branin’s clients, informing them that Branin was “leaving Bessemer to pursue other career opportunities.”

Once Branin joined Stein Roe, some of his former Bessemer clients contacted him. Many of these clients asked Branin why he had left Bessemer. Branin’s standard response to these inquiries was “a firm like Stein Roe was far more appropriate for me, . . . that the method of dealing with clients, that the approach whereby portfolio managers managed the client portfolios and interacted directly with the clients was more . . . appropriate for my training and experience of 30 years in the business.”

Several of Branin’s clients elected to transfer their accounts to Stein Roe in the ensuing months. As relevant to this appeal, the Palmer family, Branin’s largest client at Bessemer, were among those who had followed Branin to Stein Roe. The Palmer family first developed a relationship with Branin at Brundage in the 1980s, where Branin served as the junior investment advisor on the account. Eventually, Branin was elevated to lead advisor on the account and he and the head of the Palmer family, Carleton Palmer III (Palmer), had become friends. Despite this friendship, Branin refrained from informing Palmer of his decision to work at Stein Roe. The Palmer family first learned that Branin had left Bessemer when Paul Barkus, a Bessemer employee, telephoned Palmer’s brother. Indeed, Barkus specifically advised Palmer’s brother that Branin was not permitted to contact them; Barkus informed Palmer’s brother that Branin had accepted an offer with a different firm, but did not disclose that it was Stein Roe.

The news that Branin was no longer with Bessemer alarmed the Palmer family. Although Palmer knew Barkus, his primary and virtually exclusive contact at Bessemer was Branin. Palmer immediately called Branin at his home. During this conversation, Branin disclosed that he had joined Stein Roe and, on the advice of counsel, was told not to solicit his Bessemer clients. At the conclusion of the telephone call, Palmer indicated that his family would need time to consider their options and hinted that they “would more than likely solicit or investigate both firms,” meaning Stein Roe and Bessemer.

As a follow-up, Palmer sent Branin a letter, dated July 31, 2002, seeking to organize a “preliminary meeting” in order to discuss how their accounts “would be handled within your new organization.” Palmer also sought information on “the background of the organization and the continuity of account management that could be provided.” The Palmer family and Stein Roe agreed to meet in New York on August 29, 2002. The Palmer family similarly arranged a meeting with Bessemer on the same day.

Once Branin received Palmer’s letter, he requested president Rankin’s guidance in determining who should represent Stein Roe in the upcoming meeting with the Palmer family. Rankin referred Branin to the appropriate personnel and Branin facilitated a strategy session with them one week prior to Stein Roe’s presentation to the Palmers. During this session, Branin described the Palmer family’s investment philosophy and other background information related to this long-standing client. On the day of the Stein Roe meeting, Branin was present. He introduced the Palmer family to Rankin and the other participating Stein Roe executives. From there, Palmer conducted the meeting, directing questions toward the Stein Roe representatives. Branin essentially played no role in this meeting and would only “occasionally amplify a point” that the others were making. Palmer did not inquire about the fee structure at Stein Roe.

After his meetings with both Stein Roe and Bessemer, Palmer’s instinct was to transfer the family’s accounts to Stein Roe. Since Palmer’s first meeting with Stein Roe, however, was introductory in nature, Palmer wanted a formal proposal from Branin. Palmer invited Branin to his home state of Ohio to discuss the specifics. Branin obliged and traveled to Ohio on September 16, 2002. Branin explained that he would be the lead investment advisor on the account and that Stein Roe’s president would serve as the backup advisor to the account. Branin also confirmed that Stein Roe would charge the same fees that Bessemer was currently charging the Palmer family. The following day, the Palmer family moved their accounts to Stein Roe.

On November 22, 2002, after a number of Branin’s clients left Bessemer for Stein Roe, Bessemer commenced this action in Supreme Court. Bessemer, in relevant part, alleged that Branin had breached his duty of loyalty to Bessemer under the theory that Branin improperly solicited his former clients to join him at Stein Roe, thereby impairing the good will that Branin had sold to Bessemer in connection with Bessemer’s acquisition of Brundage. Branin removed the case to federal District Court on diversity grounds and filed a number of counterclaims.

Once the parties completed pretrial discovery, they each brought a motion for summary judgment. The United States District Court for the Southern District of New York denied the motions. With the consent of the parties, District Court conducted a bench trial solely as to Branin’s liability on Bessemer’s claims. By order dated April 10, 2006, District Court found that Branin “improperly induced the Palmer account to leave Bessemer and that this inducement in fact caused the Palmer account to leave Bessemer and join Stein Roe” in violation of New York law (Bessemer Trust Co., N.A. v Branin, 427 F Supp 2d 386, 393 [SD NY 2006]). With respect to the other accounts that transferred from Bessemer to Stein Roe, however, District Court found that Bessemer did not meet its burden of proving that Branin had violated New York law (see id.).

Following the bench trial on the question of liability, Bessemer moved for summary judgment on Branin’s counterclaims, which District Court granted (Bessemer Trust Co., N.A. v Branin, 498 F Supp 2d 632 [SD NY 2007]). Thereafter, the parties proceeded to trial on the issue of damages. District Court conducted a second bench trial and awarded Bessemer over $1.2 million in damages and prejudgment interest (see Bessemer Trust Co., N.A. v Branin, 544 F Supp 2d 385, 393 [SD NY 2008]).

The parties appealed to the United States Court of Appeals for the Second Circuit. As relevant to the issue before us, Bran-in appealed District Court’s liability determination with respect to the Palmer account. As noted earlier, the Second Circuit certified a question to our Court, seeking guidance “in determining what actions [under New York law] constitute improper solicitation” (Bessemer Trust Co., 618 F3d at 87 [internal quotation marks omitted]).

II.

Under New York common law, a seller has an “implied covenant” or “duty to refrain from soliciting former customers, which arises upon the sale of the ‘good will’ of an established business” (Mohawk Maintenance Co. v Kessler, 52 NY2d 276, 283 [1981]). We first adopted this rule, which derives from English common law, in Von Bremen v MacMonnies (200 NY 41 [1910]). The rationale underlying the rule is that

“ ‘[a] man may not derogate from his own grant; the vendor is not at liberty to destroy or depreciate the thing which he has sold; there is an implied covenant, on the sale of good will, that the vendor does not solicit the custom which he has parted with; it would be a fraud on the contract to do so. . . . It is not right to profess and to purport to sell that which you do not mean the purchaser to have; it is not an honest thing to pocket the price and then to recapture the subject of sale; to decoy it away or call it back before the purchaser has had time to attach it to himself and make it his very own’ ” (Von Bremen, 200 NY at 50-51, quoting Trego v Hunt, [1896] AC 7, 25; see also Mohawk, 52 NY2d at 286; Bessemer Trust Co., 618 F3d at 86).

A seller’s “implied covenant” not to solicit his former customers is “a permanent one that is not subject to divestiture upon the passage of a reasonable period of time” (Mohawk, 52 NY2d at 285). Indeed, we have recognized that upon the sale of “good will,” a “purchaser acquires the right to expect that the firm’s established customers will continue to patronize the business” (id., citing People ex rel. Johnson Co. v Roberts, 159 NY 70, 80-84 [1899]). This is so because “[t]he essence of [these types of] transaction[s] is, in effect, an attempt to transfer the loyalties of the business’ customers from the seller, who cultivated and created them, to the new proprietor” (id.).

Notwithstanding this “implied covenant,” a buyer assumes certain risks when he purchases an existing business and attempts to transfer the loyalties or “good will” of that business as his own. For example, the customers of the acquired business, “as a consequence of the change in ownership,” may choose to take their patronage elsewhere (id.). Indeed, “the occurrence of a certain amount of attrition is one of the risks that the purchaser must assume when he acquires an established business” (id.). Moreover, the seller of a business is free to subsequently compete with the purchaser and even “accept[ ] the trade of his former customers, provided that he does not actively solicit such trade” (id. at 285 n 6 [emphasis added]). To militate against these risks, which extend beyond the limited scope of a seller’s “implied covenant,” a purchaser is free to negotiate an express covenant, reasonably restricting, for instance, a “seller’s right to compete in a particular geographical area or field of endeavor” (id. at 284).

There is no hard and fast rule in determining whether a seller of “good will” has improperly solicited his former clients, and we decline to create one here. Rather, in making this assessment on a case-by-case basis, the trier of fact must consider the principles underlying the rule in Mohawk and the factors involved within the relevant industry that may impair the “good will” conveyed by the original seller.

A trier of fact ought to consider whether, following the sale of a business and its good will, a seller initiated contact with his former customers or clients. Such initiation is particularly relevant where a seller, like Branin, remains in the industry. On this point, Branin has conceded that such contact would impair the “good will” acquired by a bona fide purchaser. We agree. The “implied covenant” not to solicit former customers bars a seller from taking affirmative steps to directly communicate with them (see e.g. Hyde Park Prods. Corp. v Lerner Corp., 65 NY2d 316, 321 [1985] [deliberate solicitation of seller’s former customers “breached the duty against impairment of the goodwill transferred as part of the sale of the business”]). A seller may not, for example, send targeted mailings or make individualized telephone calls to his former customers informing them of his new business ventures. These examples are illustrative, not exhaustive, of the types of purposeful communications with former customers that the “implied covenant” proscribes. On the other hand, absent an express or restrictive covenant not to compete, a seller of “good will” who lawfully competes with a purchaser may advertise to the public. So long as such advertisement is general in nature—and not specifically aimed at the seller’s former customers—it is permissible under New York law.

A seller, of course, is not free to tout his new business venture simply because a former client has fortuitously communicated with him first. Such a rule would contravene our holdings in Von Bremen and Mohawk and lead to inconsistent results. Nonetheless, not all discussions between a seller and former client are impermissible. While the “implied covenant” places certain barriers on a seller’s conduct, it in no way prohibits a former customer or client from gathering information about that seller. In the free market, consumers of goods and services have the right to make informed choices. The issue we must resolve is to what extent a seller of “good will” may respond to the various inquiries of a former client.

In the context of the financial services industry, as in this case, a former client, contemplating the transfer of his business from the purchaser back to the seller, will invariably conduct due diligence and seek factual information pertaining to topics such as investment strategy, resources available to the seller, personnel, and fee structure. Given the competitive nature and the complexity of the financial services sector, these types of questions are entirely appropriate and, indeed, expected, especially in a case such as this where the Palmer family placed a great deal of personal trust in Branin (see generally SEC v Capital Gains Research Bureau, Inc., 375 US 180, 189-190 [1963]). Thus, a seller of “good will” may answer the factual inquiries of a former client, so long as such responses do not go beyond the scope of the specific information sought.

Nevertheless, the “implied covenant” places some limitations on a seller’s right to answer all the questions posed by a former client. A seller of “good will” engages in improper solicitation when, even if prompted, he disparages the purchaser of his business. In relinquishing the “good will” of his business to a purchaser, a seller loses his right to explain, for example, why he believes his products or services are superior. This rule comports with the purpose of the “implied covenant,” which precludes a seller from “destroying] or depreciating] the thing which he has sold” (Von Bremen, 200 NY at 51 [internal quotation marks omitted]).

Our discussion applies with equal force to the seller of “good will” who subsequently establishes a new business as a solo practitioner or joins a competing firm (see Bessemer Trust Co., 618 F3d at 89 n 5). In this case, Branin opted to join Stein Roe, a firm that competes with Bessemer. The issue in which the Second Circuit seeks our guidance is to what degree a seller may assist his new employer in responding to inquiries made by a former client. Since the seller of “good will,” absent a restrictive covenant, may compete with a purchaser, we conclude that certain activity within a new employer’s firm must be permissible.

A seller of “good will,” for example, is free to convey certain information about his former client to his new employer. In the context of the financial services industry, appropriate topics may include items such as a former client’s investment preferences, financial goals, and tolerance of risk; it may not include information that is proprietary to a purchaser of “good will.” A seller may also aid his new employer in preparing for a “sales pitch” meeting requested by a former client and may be present when such meeting takes place, although the “implied covenant” imposes some restrictions on the seller’s level of involvement during such a meeting. So long as a seller’s role is limited to responses to factual matters, his participation in such a meeting will not violate the “implied covenant.”

In answering the certified question, we continue to apply our precedents in Von Bremen and Mohawk and hold that the “implied covenant” bars a seller of “good will” from improperly soliciting his former clients. We conclude that, while a seller may not contact his former clients directly, he may, “in response to inquiries” made on a former client’s own initiative, answer factual questions. Furthermore, under the circumstances where a client exercising due diligence requests further information, a seller may assist his new employer in the “active development . . . [of] a plan” to respond to that client’s inquiries. Should that plan result in a meeting with a client, a seller’s “largely passive” role at such meeting does not constitute improper solicitation in violation of the “implied covenant.” As such, a seller or his new employer may then accept the trade of a former client.

Accordingly, the certified question should be answered in accordance with this opinion.

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

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the New York State Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in accordance with the opinion herein.

      . Branin also appealed District Court’s award of damages and the court’s dismissal of his counterclaims against Bessemer. Bessemer appealed District Court’s calculation of damages. In light of its certified question to our Court, the Second Circuit reserved its decision on District Court’s award of damages (see Bessemer Trust Co., 618 F3d at 91). It affirmed District Court’s dismissal of Branin’s counterclaims against Bessemer (see id. at 91-93).

      . Indeed, it has been observed that “the public interest is better served with open competition in the securities field and access to advisors of clients’ choice” (Smith Barney v Burrow, 558 F Supp 2d 1066, 1084 [ED Cal 2008]).


source: Caselaw Access Project

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

license: Public Domain

text:
    [948 NE2d 1285, 925 NYS2d 1]
    In the Matter of James J. Seiferheld, Respondent, v Raymond Kelly, as Police Commissioner of the City of New York, and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Appellants.
    Argued March 24, 2011;
    decided April 28, 2011

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Mordecai Newman, Leonard J. Koerner, Larry A. Sonnenshein and Karen J. Seemen of counsel), for appellants.
    Pursuant to Administrative Code of the City of New York § 13-254, the Board of Trustees of the Police Pension Fund is directed to place a pensioner on an eligibles list for a position for which he or she is qualified. It follows that the statute presumes a pensioner who is qualified for a return to city employment. Since the Department of Citywide Administrative Services, within its statutory authority, declined to find petitioner qualified for any city position based on his cocaine use, petitioner falls outside the scope of Administrative Code § 13-254 and is not entitled, as a matter of law, to the benefits it provides. Accordingly, there is nothing left for the Board of Trustees to decide and nothing to be gained by a remand. (Matter of Caruso v Ward, 72 NY2d 432; Matter of Jennings v Leon, 31 AD3d 762; Matter of Stephens v Suffolk County Dept. of Civ. Serv., 15 AD3d 589; Matter of Connor v New York City Police Dept., 22 AD3d 425; Matter of

      Jackson v Safir, 261 AD2d 348; Matter of Kearse v Brown, 184 AD2d 271; Matter of Boudreau v Levitt, 67 AD2d 1053; Matter of Mahoney v McGuire, 107 AD2d 363, 66 NY2d 622; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Gunning v Codd, 49 NY2d 495.)

      Ungaro & Cifuni, New York City (Nicholas G. Cifuni and Robert A. Ungaro of counsel), for respondent.
    I. Suspension of petitioner’s accident disability retirement benefits is arbitrary, capricious and an abuse of discretion. (Matter of O'Marah v Levitt, 35 NY2d 593; Roddy v Valentine, 268 NY 228; Matter of Day v Mruk, 307 NY 349; Birnbaum v New York State Teachers Retirement Sys., 5 NY2d 1; Matter of Jones v Board of Trustees of N.Y. Fire Dept. Art. 1-B Pension Fund, 123 AD2d 628; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of 125 Bar Corp. v State Liq. Auth. of State of N.Y., 24 NY2d 174; Sag Harbor Union Free School Dist. v Helsby, 54 AD2d 391; Matter of Gilligan, 175 Misc 160.) II. Petitioner remains medically incapacitated from the performance of police duty and respondent’s determination to the contrary was not based upon credible evidence. (Matter of Meschino v Lowery, 34 AD2d 255; Matter of Drayson v Board of Trustees of Police Pension Fund of City of N.Y., 37 AD2d 378; Matter of Scotto v Board of Trustees of Police Pension Fund of City of N.Y., Art. II, 76 AD2d 774, 54 NY2d 918; Matter of Nicolosi v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 198 AD2d 282; Matter of Holzberg v Kelly, 13 AD3d 280; Colwell v Suffolk County Police Dept., 158 F3d 635; Daley v Koch, 892 F2d 212; Nelson v Bowen, 882 F2d 45; Murdaugh v Secretary of Dept. of Health & Human Servs. of U.S., 837 F2d 99; Matter of Brady v City of New York, 22 NY2d 601.) III. Respondent’s authority under the provisions of Administrative Code of the City of New York § 13-254, safeguards on disability retirement, is rigidly defined and specifically limited. (Matter of Caruso v New York City Police Dept. Pension Funds, Arts. 1 & 2, 136 AD2d 266.) IV. The New York City Law Department has no authority in law to direct the termination of the petitioner’s civil service pension benefits. (United States v Rossomando, 144 F3d 197; Pajak v Pajak, 56 NY2d 394; Matter of Holzberg v Kelly, 13 AD3d 280; Silberzweig v Doherty, 23 Misc 3d 618; Matter of Benjamin [Hartnett], 175 AD2d 936.)
   OPINION OF THE COURT

Smith, J.

Petitioner, a New York City police officer, retired in 2004 and was awarded accident disability benefits. In the following years, the Police Department received information indicating that petitioner was not disabled; that he had made false representations to the Pension Fund; and that he had ingested cocaine, thus becoming ineligible to return to duty. The City, understandably, claims that it should not have to continue paying him a pension.

Despite the common-sense appeal of the City’s position, we affirm the Appellate Division’s order annulling the termination of petitioner’s pension benefits. The Appellate Division correctly held that the benefits can be terminated only by the trustees of the Police Pension Fund, who have not taken the necessary action. However, while we recognize the technical merit of petitioner’s argument, we express our distress at the way the system has malfunctioned in this case.

I

In December 2003, petitioner, after 11 years on the police force, applied for accident disability retirement. He claimed that as a result of a line-of-duty accident (a fall while walking on ice and snow) he suffered from constant pain in his right shoulder and neck, loss of range of motion in his neck and shoulder, and pain radiating into his arm, which prevented him from performing police duty. His application was granted, and he was awarded accident disability retirement on May 12, 2004 (see Administrative Code of City of NY § 13-252).

The following month, the Police Department received information that petitioner was working, and began an investigation that led a department official to report that petitioner was “performing construction work on a daily basis.” The investigation included observations of the work, some of them videotaped. An investigator’s reports say that petitioner was seen picking up siding, passing it to others, lifting it over his head and nailing materials above his head with both arms extended for some time—all tasks performed without apparent difficulty.

The Police Department informed the Police Pension Fund in November 2004 that petitioner “may no longer be disabled,” and the Pension Fund agreed in December 2004 to “reexamine” petitioner. The reexamination included an interview by the Pension Fund’s Medical Board at which petitioner, according to the board’s memorandum of the interview, said that he “cannot lift any heavy objects . . . cannot work overhead . . . has no outside work and his major occupation is babysitting his two children.”

Despite the difference between petitioner’s assertions and the videotapes, neither the Police Department nor the Pension Fund suggested—and neither, so far as the record shows, has suggested to date—that petitioner was guilty of fraud or misrepresentation, or that he should refund any of the pension money he had received. However, the Pension Fund’s Medical Board did conclude in May 2005 that petitioner’s condition “has improved dramatically,” and recommended disapproval of his retirement application. The Pension Fund’s trustees took no action on this recommendation for approximately two years, other than to remand the matter twice to the Medical Board, which twice reaffirmed its previous recommendation, noting in its second reaffirmance on September 19, 2006 that petitioner “seems to have made a remarkable recovery from his injury.”

Finally, on April 11, 2007, the Pension Fund Board of Trustees voted, over the dissent of several trustees, to invoke New York City Administrative Code § 13-254, entitled “Safeguards on disability retirement,” under which a disability pensioner found to be able to work may be returned to city service. The “safeguards” procedure soon hit a snag, however. Petitioner was placed on a list of candidates eligible to become police officers, but on July 6, 2007 he was informed that he was “medically disqualified” for that position “due to the presence of an unauthorized substance, cocaine, in your hair sample.”

On July 12, the New York City Law Department advised the Pension Fund that “notwithstanding” petitioner’s disqualification, “he is no longer deemed to be disabled, and he is no longer entitled to a disability pension.” There is no indication in the record that the Pension Fund’s Board of Trustees ever considered or acted on this advice, but on July 18, 2007 the Pension Fund’s Director of Pension Payroll advised petitioner “that your pension benefit will be suspended beginning with the July 2007 payroll.”

Petitioner brought this CPLR article 78 proceeding, seeking to annul the determination to suspend his pension benefits. Supreme Court denied the application (22 Misc 3d 1132[A], 2008 NY Slip Op 52670[U]). The Appellate Division reversed, annulling the suspension of benefits (70 AD3d 460 [2010]), and granted leave to appeal to this Court. We now reluctantly affirm.

II

The “safeguards” statute, New York City Administrative Code § 13-254, under which the Pension Fund tried to bring petitioner back to work, says, in relevant part:

“Once each year the board [of trustees of the Police Pension Fund] may . . . require any disability pensioner, under the minimum age or period for service retirement elected by him or her, to undergo medical examination. . . . Upon the completion of such examination the medical board shall report and certify to the board whether such beneficiary is or is not totally or partially incapacitated physically or mentally and whether he or she is or is not engaged in or able to engage in a gainful occupation. If the board concurs in a report by the medical board that such beneficiary is able to engage in a gainful occupation, he or she [sic] shall certify the name of such beneficiary to the appropriate civil service commission . . . and such commission shall place his or her name as a preferred eligible on such appropriate lists of candidates as are prepared for appointment to positions for which he or she is stated to be qualified. Should such beneficiary be engaged in a gainful occupation, or should he or she be offered city-service as a result of the placing of his or her name on a civil service list, such board shall reduce the amount of his or her disability pension ... if any, to an amount which, when added to that then earned by him or her, or earnable by him or her in city-service so offered him or her, shall not exceed the current maximum salary for the title next higher than that held by him or her when he or she was retired.” (§ 13-254 [a].)

The statute is complicated. In simplified summary, adequate for present purposes: A disability pensioner found to be able to work is put on a civil service list, and his or her pension is reduced based on outside earnings and the amount “earned . . . or earnable” in any city job that is offered.

The application of the statute to this case presents something of a puzzle, because although petitioner was put on a civil service list, he was not, and evidently could not be, offered a job because of his cocaine use. If the statute is mechanically applied, petitioner might actually benefit from using cocaine, because he presumably does not want to be offered a city job; he wants to remain retired and receive his pension. Supreme Court, in a thoughtful opinion, correctly concluded that this anomaly could not have been intended by the statute’s authors.

Supreme Court wrote: “These provisions ... do not contemplate a situation where the beneficiary refuses to return to City service . . . or . . . where the beneficiary is disqualified from City service for reasons unrelated to the physical or mental ability to work.” (2008 NY Slip Op 52670[U] at *8.) We do not necessarily agree that a beneficiary’s refusal to return would not be covered by the text of the statute; the statute seems to contemplate a pension reduction for money “earnable” by a beneficiaiy who is “offered” city employment. In the situation before us, however, Supreme Court was right that there is a problem the text of the statute does not address. Where a beneficiary who would otherwise be brought back to city employment is disqualified from that employment by his own fault, either the reduction or suspension of his benefits must be a consequence, though the statute does not expressly say so.

The Appellate Division reversed Supreme Court’s order, without discussing Supreme Court’s analysis of the statute, because the suspension of petitioner’s benefits “was not directed by the Board of Trustees” of the Pension Fund (70 AD3d at 462). The Appellate Division was correct.

It is clear from a reading of the safeguards statute that action under that statute must be taken by the board (“the board may . . . require”; “such board shall reduce”). Elsewhere, the Administrative Code, in two apparently redundant sections, says that the Pension Fund “shall be administered by a board of trustees” and that “[e]very act of the board of trustees shall be by resolution” (Administrative Code of City of NY § 13-202 [a], [b]; § 13-216 [a], [b]). The City points to no relevant exception to these provisions, or to any other provision of law that authorizes a suspension of benefits without a board vote.

The City’s argument on this point is that, because petitioner was no longer entitled to benefits, ceasing to pay them was a “purely ministerial act.” We disagree. However well justified a reduction or termination of benefits may be in this case, the Board of Trustees has to do it. There might be cases in which the impropriety of paying benefits is so obvious that Pension Fund employees can simply stop paying, without either advance approval or ratification from the board; this might be true, for example, if the statute said on its face, “No benefits shall be paid to any beneficiary who has a positive drug test.” But the application of the confusing safeguards statute to this case is something the trustees must address. Of course the trustees should weigh the advice of the City’s Law Department in deciding the question, but the decision is theirs, subject to appropriate judicial review.

Nor can we accept the dissent’s argument that the Board of Trustees revoked petitioner’s pension by its April 11, 2007 vote. The minutes of the April 11 meeting say nothing about terminating benefits. They make clear that the trustees voted to bring petitioner “back off disability” through the safeguards statute, which offers no grounds, at least on the facts as they existed on April 11, for terminating benefits rather than reducing them. Indeed, the City has not argued here that petitioner’s benefits were terminated on April 11. The City’s position is that petitioner would have continued to be entitled to benefits but for his positive drug test in July.

Though petitioner is entitled to prevail here, the case as a whole is very troubling. It seems from the record that petitioner either has received or is in a position to claim accident disability benefits for the last seven years, and counting. Yet any reader of this record must have serious doubt that he was ever really disabled. Whether any of the benefits paid to him may be recouped is a subject on which we express no opinion. But we do express the hope that the Pension Fund’s Board of Trustees will generally act to protect the Fund and the public with more efficiency than it has displayed in this case.

Accordingly, the order of the Appellate Division should be affirmed, without costs, and the certified question answered in the affirmative.

Pigott, J. (dissenting).

Because I believe that the Police Pension Fund Board of Trustees revoked petitioner’s disability retirement benefits on April 11, 2007, and that the July 12, 2007 Law Department memorandum challenged by petitioner merely interpreted that revocation, I respectfully dissent.

The Board of Trustees voted on April 11, 2007 not only to return Seiferheld to city service, but also to deny him—“disapproval” him for—accident disability retirement, “bringing the member back off disability.” As the Deputy Executive Director of the Police Pension Fund informed the Department of Citywide Administrative Services (DCAS), in a letter of May 2, 2007, the Board of Trustees had rescinded its earlier decision approving Seiferheld’s accident disability retirement application, and “denied bim a continuation of disability benefits.” In my view, the Board of Trustees did, despite Seiferheld’s allegations to the contrary, make the final determination regarding the revocation of his accident disability retirement benefits.

With his disability pension revoked, petitioner became subject to the “safeguards” statute, New York City Administrative Code § 13-254, and he would have been placed on a special preferred list for a position as a police officer, except that cocaine was found in his hair sample, disqualifying him. At this point, unsurprisingly, DCAS failed to recommend him for any other civil service title position.

When the Chief of the New York City Law Department’s Pensions Division informed the Police Pension Fund’s Deputy Executive Director that Seiferheld’s accident disability retirement should be “suspended,” i.e. terminated, in its entirety, because he was no longer considered disabled, she was not terminating Seiferheld’s accident disability retirement benefits because of his drug test failure. She was merely interpreting the effects that the drug test failure might have on the April 11, 2007 Board of Trustees determination denying Seiferheld accident disability retirement. Her conclusion was that the drug test failure would have no effect on Seiferheld’s status with respect to accident disability; those benefits had been revoked by the Board of Trustees, and the revocation would stand, “notwithstanding” the fact that Seiferheld now would have no job. The drug test failure would not affect the prior revocation of benefits determination.

In other words, no new, allegedly unauthorized, determination was made by the Law Department. Rather, it was interpreting the preexisting, April 11, 2007 Board of Trustees decision to revoke Seiferheld’s accident disability retirement benefits. Seiferheld’s disability benefits were not revoked by the Law Department; they had already been revoked by the Board of Trustees.

Seiferheld’s real problem—and one for which there may be no legal recourse—is that DCAS decided not to recommend that he be placed on any other special preferred list (i.e. for other civil service title positions) after he failed the drug test. This meant that he had not been “offered city-service as a result of the placing of his or her name on a civil service list” (Administrative Code of City of NY § 13-254 [a]), and would not qualify for a “safeguards” pension in place of his revoked disability pension. But challenging DCAS’s decision is an argument that Seiferheld has chosen not to make. Seiferheld does not argue that DCAS acted in excess of its authority in its decision not to recommend him for a position.

In my view, the Appellate Division erred in finding that the Board of Trustees had not considered what action should be taken with respect to revocation of the accident disability retirement benefits. This error, which the majority of this Court repeats, rests on an assumption that the Board’s final determination had merely been that Seiferheld should be returned to work as a police officer. This leaves out a crucial part of the Board’s ruling. The Board’s final determination was that Seiferheld was not disabled, should not receive disability benefits, and should be returned to work.

I would therefore reverse, deny the petition and dismiss the CPLR article 78 proceeding.

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

Order affirmed, etc.


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

text:
    [949 NE2d 457, 925 NYS2d 366]
    The People of the State of New York, Respondent, v Shareef Evans, Appellant.
    Argued February 16, 2011;
    decided March 31, 2011

      POINTS OF COUNSEL

      Legal Aid Society, New York City (William B. Carney and Steven Banks of counsel), for appellant.
    Appellant was deprived of his due process rights (a) to effective post-conviction review by the Appellate Division’s refusal to consider the actual reasons for counsel’s failing to raise the statute of limitations defense, and (b) to effective assistance of counsel when his trial lawyer acknowledged that he did not raise the statute of limitations defense because he was completely unaware of this absolute defense, and also failed to reopen the Huntley hearing after the lead detective told a critically different account of how appellant’s statement was obtained. (Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; People v Caban, 5 NY3d 143; People v Benevento, 91 NY2d 708; People v Turner, 5 NY3d 476; Massaro v United States, 538 US 500; People v Brown, 45 NY2d 852; Walker v Dalsheim, 669 F Supp 68; People v Ramos, 63 NY2d 640; People v Love, 57 NY2d 998.)

      Richard A. Brown, District Attorney, Kew Gardens (Jennifer Hagan and John M. Castellano of counsel), for respondent.
    I. This Court is jurisdictionally barred from reviewing defendant’s claim that his attorney was ineffective because he was unaware that he could raise a statute of limitations defense to the manslaughter charges. (People v Sevencan, 12 NY3d 388; People v Bautista, 7 NY3d 838; Matter of State of New York v King, 36 NY2d 59; People v Zerillo, 200 NY 443; People v Grossmann, 87 NY2d 1003; People v Jones, 85 NY2d 882; People v Ginsberg, 43 NY2d 715; People v Sommer, 33 NY2d 688; People v Kim, 91 NY2d 407; People v Kellar, 89 NY2d 948.) II. The Appellate Division correctly found that defendant received the effective assistance of counsel at trial. (People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Baker, 14 NY3d 266; People v Satterfield, 66 NY2d 796; People v Borrell, 12 NY3d 365; People v Turner, 5 NY3d 476; People v Henry, 95 NY2d 563; People v Flores, 84 NY2d 184; Strickland v Washington, 466 US 668; Arizona v Fulminante, 499 US 279.)
   OPINION OF THE COURT

Pigott, J.

The primary issue presented on this appeal is whether defendant’s trial counsel was ineffective for failing to raise a statute of limitations defense. Based on the record before us, we conclude that he was not.

On October 3, 1993, defendant, 15 years old at the time, shot and killed a cab driver in Queens. Nearly eight years later, he was indicted on three counts of murder in the second degree (Penal Law § 125.25 [1], [2], [3]) and one count of manslaughter in the first degree (Penal Law § 125.20). The manslaughter count was subject to a five-year statute of limitations (see CPL 30.10 [2] [b]).

Following a bench trial, defendant was acquitted of murder but convicted of manslaughter.

Defendant then appealed his conviction and at about the same time, through assigned counsel, filed a motion pursuant to CPL 440.10 to vacate his conviction. In his motion he claimed, as relevant to this appeal, that his attorney was ineffective for failing to raise the statute of limitations defense with respect to the manslaughter count. Trial counsel saw fit to provide two affirmations with respect to the motion, one for each side. In the affirmation provided for defendant, he stated that he did not consider raising any defense at all and that “perhaps [he] was mistaken and ‘maybe [he] had missed something.’ ” In the affirmation he provided the People, he averred that “[h]ad [he] considered a statute of limitations defense . . . , [he] would not have raised it, because [he] would have wanted the Court to consider the manslaughter charge as an alternative to potentially finding defendant guilty of the greater charge of murder.” Instead of deciding the motion on the merits, Supreme Court found that sufficient facts appeared on the record with respect to the issues raised to permit adequate review on direct appeal and denied the motion. Defendant sought leave to appeal the denial of his motion and to consolidate that appeal with his direct appeal, but a Justice of the Appellate Division denied that application.

Defendant then proceeded with his direct appeal. The Appellate Division unanimously affirmed the conviction finding, as relevant here, that defendant’s claims of ineffective assistance of counsel involved matters outside the record, and that those matters may not be reviewed on appeal (69 AD3d 649 [2d Dept 2010]). To the extent that the claim could be reviewed, the court held that counsel’s failure to raise the statute of limitations defense reflected a legitimate trial strategy of a reasonably competent attorney, noting, in addition, that counsel adequately cross-examined the People’s witnesses, and provided a cogent summation.

A Judge of this Court granted defendant leave to appeal and we now affirm.

As an initial matter, defendant here found himself in a dilemma when the trial court denied his CPL 440.10 motion because, in its view, the issue was sufficiently preserved on his direct appeal, only to find that the appellate court disagreed. As a result, trial counsel’s affirmations, concerning his failure to raise the statute of limitations defense, were never properly considered by any court. Although the attorney’s affirmations are not dispositive of the ineffective assistance claim, they plainly are relevant. This problem could have easily been remedied had the Appellate Division granted leave on the CPL 440.10 motion and consolidated it with the direct appeal—a solution we hope our appellate courts will consider in the future should this situation arise. But because the Appellate Division denied defendant leave on his article 440 motion, we are limited to a review of the record before us. And, unless it is clear from the record that there could not have been any legitimate trial strategy for failing to raise the statute of limitations defense, we must deny defendant relief (cf. People v Turner, 5 NY3d 476, 483-484 [2005]). Here, we agree with the Appellate Division that on the record before us, it cannot be said that counsel did not provide meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]).

We have previously ruled that the single error of failing to raise a statute of limitations defense may qualify as ineffective assistance. In People v Turner (5 NY3d 476 [2005]), we held that appellate counsel was ineffective for failing to argue that trial counsel was ineffective for failing to raise the five-year statute of limitations with respect to a manslaughter count. There, counsel had objected to the submission of the manslaughter count, so it was clear from the record that counsel did not want the jury to consider it as an alternative to murder, yet trial counsel inexplicably failed to support the objection by raising a clear statute of limitations defense. But we have also recognized that in many cases a defendant who thinks his chances of acquittal are small may welcome giving the jury an opportunity to consider a lesser charge (id. at 483-484, citing People v Boettcher, 69 NY2d 174, 182 n 3 [1987]).

The issue here, then, is whether counsel’s failure to raise the defense reflects a legitimate trial strategy of a reasonably competent attorney. In People v Satterfield (66 NY2d 796, 799 [1985]), we held that in ineffective assistance cases, counsel’s subjective reasons for a decision are immaterial, so long as “[v]iewed objectively, the transcript and the submissions reveal the existence of a trial strategy that might well have been pursued by a reasonably competent attorney” (emphasis added). Here, there is no dispute that the manslaughter count was barred by the statute of limitations and that such a defense, if raised by trial counsel, would have been successful. But at the time of trial, defendant was facing second-degree murder charges with an admission that he had fired the shot that caused the cab driver’s death. Therefore, had the manslaughter count been dismissed prior to verdict, the trier of fact would have been left with murder as the only choice if defendant was to be found criminally responsible for the homicide. So allowing the trial court to consider the manslaughter count would be a legitimate strategy. And it is clear from the record that the defense counsel in this case wanted the court to do just that. During summation, he specifically requested that the court consider the manslaughter count on the theory that defendant stated that he took out the weapon to stop a robbery. Based on differing trial strategies, defense counsel then argued that defendant should be acquitted of all of the counts or be convicted only of manslaughter.

As to the other issue raised on this appeal, we reject defendant’s claim that defense counsel was ineffective for failing to move to reopen the suppression hearing since, on this record, it is clear that it would not have resulted in a different ruling.

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

Jones, J. (dissenting).

On this record, I believe that defendant received ineffective assistance of counsel. Therefore, I respectfully dissent.

Defendant was convicted in 2005 of manslaughter in connection with a homicide which occurred in 1993. At the same trial, he was acquitted of murder. There is no dispute that the manslaughter charge was time-barred. The sole issue is whether the failure to object to the charge was a deliberate trial strategy or amounted to ineffective assistance of counsel.

Following his conviction, defendant filed a pro se motion pursuant to CPL 440.10. He contended that he had received ineffective assistance of counsel because counsel failed to object on the ground that the five-year statute of limitations relating to the manslaughter charge had expired (see CPL 30.10 [2] [b]). Supreme Court denied defendant’s motion. The court accepted the People’s contention that defendant could raise the issue of ineffective assistance of counsel on direct appeal. A Justice of the Appellate Division denied defendant’s application for leave to appeal from the denial of the motion.

On direct appeal, the Appellate Division affirmed the judgment of conviction. Although trial counsel submitted affirmations acknowledging ignorance of the statute of limitations defense, the court held that they were matters outside the record, which could not be reviewed. On the record, however, the court held, among other things, that defense counsel provided effective assistance. It concluded that “[c]ounsel’s failure to raise the statute of limitations as a defense to the first-degree manslaughter count reflect[ed] a legitimate trial strategy of a reasonably competent attorney” (69 AD3d 649, 650 [2010]). This conclusion was speculative and unsupported by the record.

This record is sufficient to resolve defendant’s ineffective assistance of counsel claim in his favor. As a threshold matter, I disagree with my colleagues regarding the relevancy of trial counsel’s affirmations (see majority op at 574). An affirmation by trial counsel regarding his internal deliberations on how to proceed is immaterial (see People v Satterfield, 66 NY2d 796, 799 [1985] [“counsel’s subjective reasons for (a decision are) immaterial”]). It is how trial counsel proceeded on the record which is of importance in this matter. It is clear on this record that neither the court nor the parties recognized that the manslaughter charge was time-barred (cf. People v Mills, 1 NY3d 269 [2003]). Moreover, acknowledging that the manslaughter charge was time-barred on the record would not have removed the charge from consideration. Contrarily, it would have been objective proof of defense counsel’s trial strategy to have the time-barred manslaughter charge considered by the trial court; in addition, it might have constituted a waiver of the defense (see id.). In Mills, the defendant had been charged with second-degree murder, but in a pretrial motion and a subsequent charge conference, he affirmatively requested that lesser included offenses be submitted to the jury (id. at 272). The trial court considered the request, conditioned upon “defendant’s ‘understanding that, if convicted of any lesser included offense, he has waived his objection on statute of limitation[s] grounds’ ” (id.). Unlike Mills, where there was an objective basis in the record to conclude that the affirmative request for the lesser included charges was a form of trial strategy, this record fails to demonstrate such a deliberate choice by defense counsel. Because the record clearly demonstrates that defendant should not have been charged with manslaughter, as its statute of limitations had run and no tolling provisions applied, and neither party nor the court recognized that the charge was time-barred, defendant’s ineffective assistance of counsel claim can be resolved on the existing record alone (see People v Benevento, 91 NY2d 708 [1998]), and, for the foregoing reasons, should be resolved in defendant’s favor.

Effective assistance of counsel is a right guaranteed by the Sixth Amendment of the United States Constitution and article I, § 6 of the State Constitution (see People v Baldi, 54 NY2d 137, 146 [1981]). It is a right that exists “to protect the fundamental right to a fair trial” (Strickland v Washington, 466 US 668, 684 [1984]). A defendant’s “constitutional rights are violated if a defendant’s counsel fails to meet a minimum standard of effectiveness, and defendant suffers prejudice from that failure” (People v Turner, 5 NY3d 476, 479 [2005]).

In rare cases, “a single failing in an otherwise competent performance is so ‘egregious and prejudicial’ as to deprive a defendant of his constitutional right” that it can bring about ineffective assistance of counsel (id. at 480). It is most obvious when counsel “fail[ed] to raise a defense as clear-cut and completely dispositive as a statute of limitations. Such a failure, in the absence of a reasonable explanation for it, is hard to reconcile with a defendant’s constitutional right to the effective assistance of counsel” (id. at 481).

Similar to the case at bar, in Turner, the defendant was indicted for murder in the second degree. At trial, the prosecutor asked that the jury be instructed to consider the lesser included offense, manslaughter in the first degree, which was time-barred. Defense counsel objected, but failed to specifically invoke the statute of limitations. The defendant was acquitted of second-degree murder, but convicted of first-degree manslaughter. After his conviction, the defendant unsuccessfully tried to raise the statute of limitations issue through his appellate counsel. Appellate counsel failed to argue that issue on direct appeal, and his conviction was affirmed.

This Court subsequently considered the issue on defendant’s second petition for a writ of error coram nobis. Although the ultimate issue in Turner involved ineffective assistance of appellate counsel, the question “depended] on how strong defendant’s statute of limitations defense was” (5 NY3d at 481). The Turner Court concluded that the statute of limitations defense “was a winning argument [and] that trial counsel could not reasonably have thought that the defense was not worth raising” (id.).

In the Turner case, because trial counsel objected to the manslaughter charge without arguing that the charge was time-barred, no reasonable explanation existed for failing to raise that specific defense. The record in Turner, as in the instant case, did not support the conclusion that counsel had waived the defense. Though the circumstances of ineffective assistance of counsel in Turner differ from that of this case, the principle remains the same. Defendants were convicted of manslaughter despite the existence of the clear-cut and dispositive defense of the statute of limitations to those charges. Such a failure to raise the defense is clearly prejudicial to a defendant who is acquitted of all other charges save for the time-barred charge. Particularly given that counsel could have advised the court on the record that the manslaughter charge, although time-barred, still could be considered. Thus, I submit, where it is clear, as it is on this record, that no consideration regarding the expiration of the time to prosecute had been given, it should not be presumed that defense counsel’s failure to raise the defense was a legitimate strategy.

Furthermore, the majority urges that when future, similar cases are presented, the Appellate Division should consolidate a defendant’s CPL 440.10 motion with his or her direct appeal in order to allow review of matters de hors the record. However, this does not solve the predicament that the instant defendant finds himself in. Defendant has had two CPL 440.10 motions claiming ineffective assistance of counsel denied and as a result of the majority’s opinion, his direct appeal has now been exhausted. While the majority’s suggestion seeks to remedy this procedural dilemma, for this defendant, this holding effectively forecloses him from a legitimate avenue and basis for future CPL 440.10 motions because the majority has definitively held that defense counsel’s failure to object to the manslaughter charge was a reasonable trial strategy despite the lack of record support for such a conclusion. The conclusion that defense counsel’s reference to the manslaughter charge in his summation was trial strategy, without further evidence that counsel or the trial court was aware of this statute of limitations issue, is unfounded speculation.

In sum, defendant’s ineffective assistance of counsel claim rests on a single issue, which is indisputable. The People charged defendant with manslaughter after the expiration of the five-year statute of limitations, and trial counsel failed to raise the statute of limitations as a defense. Moreover, at no point during the bench trial was there any discussion on the record regarding the statute of limitations of the manslaughter charge. Thus, without discussing on the record that the statute of limitations had run, contrary to the majority’s conclusions, trial counsel’s references to the manslaughter charge cannot be said to be a trial strategy. Given that such a defense may be forfeited or waived (Mills, 1 NY3d at 274 [“New York courts have long recognized that the statute of limitations defense . . . can be forfeited or waived by a defendant”]), there is nothing in this record to suggest that trial counsel consented to having the manslaughter charge considered even though the time to prosecute that crime had run. Therefore, in light of the prejudice to defendant, trial counsel’s failure to raise the statute of limitations defense, on this record, constitutes ineffective assistance of counsel.

Accordingly, I would reverse the Appellate Division order and vacate the judgment of conviction.

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

Order affirmed.

      . There were actually two CPL 440.10 motions; one by the defendant pro se, the other filed by assigned counsel. We are dealing here with the one filed by counsel.

      . (See Edelstein, Outside Counsel, Ineffective Assistance of Counsel, N.Y. Collateral Review, NYLJ, Mar. 3, 2008, at 4, col 4.) The federal courts have recently resolved the problem that arises when an ineffective assistance of counsel claim involves such “mixed claims” relating to both record-based and nonrecord-based issues (see Massaro v United States, 538 US 500 [2003]). An ineffective assistance of counsel claim may be brought in a collateral proceeding, whether or not the petitioner could have raised the claim on direct appeal. When such a claim is brought on direct appeal, the federal courts have reasoned, appellate counsel and the court must proceed on a trial record that was not developed precisely for the object of litigating or preserving the claim and is often incomplete or inadequate for this purpose (id. at 504-505).


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

text:
    [949 NE2d 471, 925 NYS2d 380]
    The People of the State of New York, Appellant, v Robert Alonso and Emilia Alonso, Respondents.
    Argued March 22, 2011;
    decided May 3, 2011

      POINTS OF COUNSEL

      Eric T. Schneiderman, Attorney General, New York City (Roseann B. MacKechnie and Barbara D. Underwood of counsel), for appellant.
    The trial court’s order dismissing the indictments as a sanction for a purported discovery violation is appealable. (People v Dunn, 4 NY3d 495; People v Stevens, 91 NY2d 270; People v Laing, 79 NY2d 166; People v Hernandez, 98 NY2d 8; People v Franco, 196 AD2d 357, 86 NY2d 493; People v Coppa, 45 NY2d 244; People v Rosenberg, 45 NY2d 251; People v Wallace, 220 AD2d 248; People v Williams, 186 Misc 2d 705; People v Gonzalez, 184 Misc 2d 262.)

      Diane E. Selker, Peekskill, for respondents.
    The Appellate Division correctly held that the trial court order dismissing the indictment as a discovery sanction under CPL 240.70 (1) is not appealable under CPL 450.20. (People v Laing, 79 NY2d 166; People v Hernandez, 98 NY2d 8; People v Allen, 92 NY2d 378; People v Schaum, 98 NY2d 667; People v Franco, 86 NY2d 493; People v Swamp, 84 NY2d 725; People v Coppa, 45 NY2d 244; People v Doe, 170 AD2d 690, 77 NY2d 956; People v Myers, 226 AD2d 557; People v Rosenberg, 45 NY2d 251.)

      Derek P. Champagne, District Attorney, Malone (Patrick J. Hynes and Sara M. Zausmer of counsel), for District Attorneys Association of the State of New York, amicus curiae.
    A court’s order dismissing a felony indictment as an “appropriate” sanction under CPL 240.70 is an exercise of the power conferred by CPL 210.20 and is thus appealable. (People v Rosenberg, 45 NY2d 251; People v Kelly, 62 NY2d 516; People v Douglass, 60 NY2d 194; People v Jones, 93 AD2d 743; People v Schaum, 98 NY2d 667; People v Coppa, 45 NY2d 244; People v Wallace, 220 AD2d 248, 87 NY2d 1026; People v Belge, 41 NY2d 60; People v Colon, 110 Misc 2d 917, 112 Misc 2d 790, 59 NY2d 921; People v Chu Zhu, 171 Misc 2d 298, 245 AD2d 296.)
   OPINION OF THE COURT

Chief Judge Lippman.

Several months into a criminal trial on charges related to alleged Medicaid fraud, Supreme Court determined that the People had failed to meet their obligation to disclose exculpatory evidence pursuant to Brady v Maryland (373 US 83 [1963]). Supreme Court found that the constitutional violation was of such a magnitude that the prejudice to defendants could not be overcome by any remedy short of dismissing the indictments. Having concluded that the defendants could not receive a fair trial under the circumstances, Supreme Court dismissed the indictments, with prejudice.

The People brought an appeal to the Appellate Division. That court, however, dismissed the appeal without passing upon the merits. The Appellate Division reasoned that the People lacked the statutory right to bring an appeal from a dismissal of an indictment in response to a discovery violation (People v Alonso, 70 AD3d 957 [2d Dept 2010]). A Judge of this Court granted the People leave to appeal (15 NY3d 746 [2010]). For the reasons that follow, and without expressing any view as to the merits of Supreme Court’s decision, we conclude that the People have a right to appeal the dismissal of the indictments. We therefore reverse the Appellate Division order and remit the case to that court for consideration of the merits of the People’s appeal.

Historically, the People “were authorized, in general terms, to appeal to an intermediate appellate court from any order dismissing an indictment on any ground other than insufficiency of the evidence at trial” (People v Coppa, 45 NY2d 244, 249 [1978]). The availability of a People’s appeal from the dismissal of an indictment has since been circumscribed by statute and is now governed by Criminal Procedure Law § 450.20 (see People v Dunn, 4 NY3d 495, 497 [2005]; see also People v Laing, 79 NY2d 166, 170 [1992] [recognizing “the Legislature’s policy prerogative to limit appellate proliferation in criminal matters” (internal quotation marks omitted)]). Under that provision, as relevant here, the People have a right to appeal from “[a]n order dismissing an accusatory instrument or a count thereof, entered pursuant to section 170.30, 170.50 or 210.20, or an order terminating a prosecution pursuant to subdivision four of section 180.85” (CPL 450.20 [1]), and we will not resort to “interpretative contrivances to broaden the scope” of CPL 450.20 (Laing, 79 NY2d at 170-171; see People v Hernandez, 98 NY2d 8, 10 [2002]).

Here, neither Supreme Court’s order dismissing the indictments nor its otherwise comprehensive discussion on the record with counsel as to how it should address the Brady violation unequivocally states on what authority Supreme Court relied in dismissing the indictments. However, in context, it is clear that Supreme Court premised the dismissal of the indictments on the language of CPL 240.70. A court faced with a party’s discovery violation is empowered by CPL 240.70 to take a number of actions, including ordering the noncompliant party “to permit discovery of the property not previously disclosed, grant a continuance, issue a protective order, prohibit the introduction of certain evidence or the calling of certain witnesses or take any other appropriate action” (CPL 240.70 [1]). In its discussions with counsel on the record, Supreme Court referred to CPL 240.70, and it appears Supreme Court concluded that it had the power to dismiss the indictments under the “any other appropriate action” language of CPL 240.70 (1).

The Legislature, however, provided the grounds upon which Supreme Court may dismiss an indictment in a different section of the Criminal Procedure Law, section 210.20. That provision provides that “[a]fter arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof’ upon a series of enumerated grounds (see CPL 210.20 [1] [a]-[i]).

The People do not argue that Supreme Court lacked the power to dismiss these indictments (see Dunn, 4 NY3d at 497 [recognizing that “the People may seek a writ of prohibition in a CPLR article 78 proceeding when a trial court clearly acts in excess of its authorized powers and there is no adequate remedy at law,” such as a direct appeal, “to address the People’s grievance” (internal quotation marks omitted)]). Rather, the parties disagree as to whether Supreme Court’s power to dismiss these indictments springs exclusively from CPL 240.70 (the discovery sanctions provision of the CPL). Defendants argue that it does, but the People argue that the dismissal power arises either from CPL 210.20 (the provision listing the grounds upon which a court may dismiss an indictment) alone or from reading CPL 240.70 and 210.20 together. Whether resort to CPL 210.20 is necessary is determinative of the question of whether the People have a right to appeal because, simply put, CPL 210.20 is listed in CPL 450.20 (1), while CPL 240.70 is not among the provisions listed in CPL 450.20. We agree with the People that Supreme Court’s power to dismiss these indictments emanates from CPL 210.20. Thus, the People have the right to appeal Supreme Court’s order dismissing the indictments.

CPL 210.20’s catchall provision, CPL 210.20 (1) (h), empowers a court to dismiss an indictment when “[t]here exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged.” The catchall language of CPL 240.70 (1) (“or take any other appropriate action”) allows Supreme Court to exercise any other power it possesses in fashioning an appropriate remedy for a discovery violation, but it does not, in and of itself, empower Supreme Court to dismiss an indictment. As the People argue, resort to CPL 210.20 (1) (h) was necessary to effectuate dismissal.

But, defendants protest, Supreme Court never referred to CPL 210.20 (1) (h) in its written order or in its discussions with counsel on the record, thus it must be assumed that Supreme Court acted solely pursuant to CPL 240.70 in remedying the Brady violation. We cannot agree.

First, under defendants’ argument, a court could effectively insulate its own dismissal of an indictment from appellate review simply by stating erroneously that it acted in reliance on a statutory provision not listed in CPL 450.20. The absurdity of such a result is obvious (see generally People v D’Alessandro, 13 NY3d 216, 218-219 [2009], citing People v Giles, 73 NY2d 666, 669-670 [1989]).

Second, although Supreme Court did not expressly refer to CPL 210.20 (1) (h), it is clear that the import of its order fell squarely within its terms. Supreme Court stressed in thorough discussions with counsel on the record that the magnitude of the Brady violation here, in the court’s view, was such that it would be impossible for the defendants to receive a fair trial. Supreme Court struggled to fashion a remedy for the violation and engaged the People and defense counsel in that effort, but it ultimately concluded that it had no choice but to dismiss the indictments, with prejudice. The Brady violation, therefore, in Supreme Court’s view, became a “legal impediment to conviction” within the meaning of CPL 210.20 (1) (h) (see Commission Staff Notes, reprinted following NY CLS, CPL 210.20, Book 7C, at 171 [describing CPL 210.20 (1) (h) as a “dragnet provision” designed as such given “the impossibility of specifying every kind of contention which may properly be raised in an attack upon an indictment”]).

Our conclusion that the People have a right to appeal the dismissal of the indictments here is not contrary to our decision in People v Hernandez (98 NY2d 8 [2002]), where we determined that the order dismissing the accusatory instrument there could not be appealed. In fact, Hernandez may be usefully distinguished. There, the defendant was subjected to a warrantless arrest and was charged in a misdemeanor complaint with consuming alcohol in public. The dismissal of the complaint was made pursuant to CPL 140.45, which “requires dismissal when an accusatory instrument filed pursuant to warrantless arrest provisions is facially insufficient” and the court determines that it would be impossible, on the basis of the known facts, to draft a sufficient accusatory instrument (Hernandez, 98 NY2d at 10; CPL 140.45). Thus, contrary to the discovery sanctions provision at issue here (CPL 240.70), CPL 140.45 itself empowered the court to dismiss the accusatory instrument under certain circumstances. Given that express legislative grant of power, coupled with the Legislature’s omission of CPL 140.45 from the provisions listed in CPL 450.20, we found the People had no right to appeal. The same cannot be said here. The Legislature empowered Supreme Court to take “appropriate action” in addressing a discovery violation under CPL 240.70, but, unlike CPL 140.45, there is no express grant of dismissal power in CPL 240.70.

The impossibility of a fair trial created, in Supreme Court’s view, by the Brady violation presented a “legal impediment to conviction” within the meaning of CPL 210.20 (1) (h). Thus, Supreme Court’s order was issued pursuant to CPL 210.20, and, as CPL 210.20 is among the provisions listed in CPL 450.20 (1), the People may take an appeal of the dismissal order to the Appellate Division.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the merits of the appeal.

Jones, J. (dissenting).

Criminal Procedure Law § 450.20 (1) authorizes the People to take an appeal as of right from “[a]n order dismissing an accusatory instrument . . . entered pursuant to section 170.30, 170.50 or 210.20.” Until now, this Court has consistently held that “[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” (People v Dunn, 4 NY3d 495, 497 [2005]; see also People v Hernandez, 98 NY2d 8, 10 [2002]; People v Stevens, 91 NY2d 270, 278 [1998]).

In Dunn, Supreme Court purported to dismiss an indictment under Judiciary Law § 2-b (3), a statute not mentioned in CPL 450.20’s grant of appellate jurisdiction. The court’s power to dismiss under that Judiciary Law section was questionable at best, and the People argued that the order “should be deemed to have been made pursuant to CPL 330.30,” and thus appeal-able (Dunn, 4 NY3d at 497). We affirmed the Appellate Division’s dismissal of the appeal, repeating declarations made in both Hernandez and People v Laing (79 NY2d 166, 170-171 [1992]): “we will not resort to interpretative contrivances to broaden the scope and application of CPL 450.20” (4 NY3d at 497 [internal quotation marks omitted]).

Notwithstanding the almost identical argument in Dunn, the majority now holds that Supreme Court did not have the power to dismiss an indictment under CPL 240.70, and therefore it must have dismissed under CPL 210.20, making the dismissal appealable. The majority does so without distinguishing Dunn or explaining why the Court does not follow that rule here. Despite this Court’s jurisprudence, the majority converts indictments dismissed under CPL 240.70 into indictments dismissed under CPL 210.20 so that an appeal may be taken by the People pursuant to CPL 450.20. As a result, rather than “construing the] clear and unambiguous statutes as enacted,” the majority’s interpretation clearly “broaden[s] the scope and application of’ CPL 450.20 (Laing, 79 NY2d at 170-171).

Here, Supreme Court dismissed the indictments pursuant to CPL 240.70, penalizing the People for a discovery violation. CPL 240.70 is not specifically enumerated in section 450.20. Because there is no express statutory authority for the People’s appeal from an order dismissing accusatory instruments pursuant to section 240.70, the People have no right to appeal under CPL 450.20 (see Hernandez, 98 NY2d at 10; Laing, 79 NY2d at 170).

Accordingly, I dissent and would vote to affirm the Appellate Division order.

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

Order reversed, etc.

      . Here, there is no suggestion that Supreme Court sought to shield its order from appellate review. Indeed, immediately after Supreme Court orally announced its decision to dismiss the indictments, the record reflects that the court presumed that its order would be the subject of an appeal; it was only after additional discussion with counsel that Supreme Court learned that defendants took a different view and believed that the People could not take an appeal.

      . We explained in Hernandez, too, that the legislative rationale behind not providing the People with an appeal in those circumstances is clear:
      “As the legislative history of CPL 140.45 explains, in a case of an arrest under a warrant, the information or felony complaint underlying the warrant is filed with, and examined for sufficiency by, a local criminal court before the arrest, whereas, when an arrest is made without a warrant, since the arraignment is the court’s first opportunity to examine it, it should have the power to reject it on that occasion” (98 NY2d at 10 [internal quotation marks omitted]).
      No analogous principle animates the Legislature’s language in CPL 240.70 (1) allowing a trial court to take “appropriate action” in the face of a discovery violation.


author: Jones, J.

text:
    [949 NE2d 475, 925 NYS2d 384]
    The People of the State of New York, Respondent, v Steven Scott, Appellant.
    Argued March 22, 2011;
    decided May 3, 2011

      POINTS OF COUNSEL

      Paul J. Connolly, Delmar, for appellant.
    I. County Court committed reversible error in granting the prosecution’s motion to excuse a sworn juror for cause though he had not been shown to have a state of mind with which he could not render an impartial verdict. (People v Harris, 57 NY2d 335; People v Williams, 63 NY2d 882; People v Arnold, 96 NY2d 358; People v Lipsky, 57 NY2d 560; People v Russell, 16 AD3d 776, 5 NY3d 809; People v Kenner, 8 AD3d 296; People v Tankleff, 84 NY2d 992; People v Jackson, 182 AD2d 919, 80 NY2d 832; People v Victor, 62 NY2d 374; People v Cahill, 2 NY3d 14.) II. County Court committed reversible error in denying a defense challenge for cause of a prospective juror who had effectively had an attorney-client relationship with the prosecuting attorney. (People v Johnson, 94 NY2d 600; People v Arnold, 96 NY2d 358; People v Clark, 125 AD2d 868; People v Branch, 46 NY2d 645; Matter of Cooperman, 83 NY2d 465; Matter of Wallach, 164 App Div 600, 215 NY 622; People v Provenzano, 50 NY2d 420; People v Levandowski, 8 AD3d 898; People v Hall, 138 AD2d 404; People v Kane, 57 AD2d 575.) III. County Court’s rape shield ruling was an abuse of discretion that violated defendant’s constitutional right to confront witnesses and constitutional due process right to present a defense. (People v Williams, 81 NY2d 303; People v Loja, 305 AD2d 189; People v Jovanovic, 263 AD2d 182, 95 NY2d 846; People v Santiago, 13 AD3d 81, 4 NY3d 767; People v Salko, 47 NY2d 230; People v Segarra, 46 AD3d 363, 10 NY3d 816; People v Mann, 41 AD3d 977, 9 NY3d 924; People v White, 261 AD2d 653, 93 NY2d 1029; People v Wise, 46 NY2d 321; People v Beavers, 127 AD2d 138; 70 NY2d 642.)

      James A. Murphy, III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.
    I. The trial judge properly exercised his discretion in excusing a sworn juror for cause after the juror revealed that he violated his oath under Criminal Procedure Law § 270.15 (1) (a), misled the court during voir dire and failed to follow the court’s instructions. (People v Williams, 63 NY2d 882; People v Arnold, 96 NY2d 358; People v Culhane, 33 NY2d 90; People v Blyden, 55 NY2d 73; People v Johnson, 94 NY2d 600; People v Dukes, 8 NY3d 952; People v Buford, 69 NY2d 290; People v Torpey, 63 NY2d 361; People v Hoffler, 53 AD3d 116; People v Norwood, 177 Misc 2d 172.) II. Defendant’s challenge for cause on the ground that a prospective juror had a professional relationship with the trial prosecutor was properly denied after the juror assured the court that the prosecutor’s representation of her son in a personal injury case approximately 14 years before the trial of this matter would not affect the prospective juror’s judgment. (People v Branch, 46 NY2d 645; People v Provenzano, 50 NY2d 420; People v Williams, 243 AD2d 833, 91 NY2d 931; Matter of Cooperman, 83 NY2d 465; Matter of Wallach, 164 App Div 600, 215 NY 622; People v Levandowski, 8 AD3d 898; People v Hall, 138 AD2d 404; People v Kane, 57 AD2d 575; People v Clark, 125 AD2d 868.) III. The rulings made by County Court on the rape shield issue were proper exercises of discretion, did not unduly prejudice defendant and did not violate his constitutional right to due process or his constitutional right to confront witnesses. (People v Mandel, 48 NY2d 952; People v Williams, 81 NY2d 303; People v Halbert, 175 AD2d 88, 80 NY2d 865; People v Jovanovic, 263 AD2d 182; People v Loja, 305 AD2d 189; People v Lyng, 154 AD2d 787; People v Malizia, 62 NY2d 755; People v Anthony, 24 NY2d 696; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Jones, J.

This appeal requires the Court to resolve whether the trial court erred (1) in precluding evidence of a victim’s sexual conduct around the time of the incident pursuant to New York’s Rape Shield Law (Criminal Procedure Law § 60.42) and (2) in disqualifying one juror and failing to discharge another.

In March 2007, three eighth-grade girls, K.D., A.B. and R.S., left a slumber party and went to the home of Steven A., a 16-year-old friend of theirs. Defendant, a 23-year-old man, and another adult were also there. While at Steven A.’s home, the girls drank alcohol and smoked marijuana with Steven A. and his friends, and also engaged in sexual activity. Two days later, K.D. informed the police that she had intercourse with Steven A. at his party, but did not accuse defendant. K.D. gave a second statement to the police a few days later, stating she had intercourse with the defendant that night against her will. Defendant was charged with rape in the first degree (forcible), rape in the second degree (statutory) and three counts of endangering the welfare of a child.

During jury selection, the People asked the prospective jurors whether the lack of DNA evidence would “affect anybody’s decision in this matter?” After being sworn, a juror asked to approach the bench and informed the court: “I guess I think that there should be DNA evidence.” County Court made a limited inquiry about the juror’s statement. It then granted the People’s request to remove the juror over defendant’s objection. The court found him to be “unqualified to serve as a juror.” As to another prospective juror, that juror advised the court, when asked whether any of the jurors knew the prosecutor, that the prosecutor “took a case for me for my son,” about 13 or 14 years earlier. County Court denied defendant’s challenge for cause.

Prior to trial, defendant moved for an order allowing him to introduce evidence at trial of K.D.’s sexual conduct at the party, specifically her involvement with Steven A. County Court held a hearing pursuant to CPL 60.42 (5). The court initially granted the motion, but subsequently granted the People’s motion to reargue this issue. The court then ruled that the defense was “prohibited from eliciting testimony relative to any prior sexual conduct of the victim with any of the other individuals who were present” unless the People introduced evidence attributing KD.’s bruises to sexual activity.

At trial, K.D. testified that she was raped by defendant. A.B. testified that K.D. had been alone with defendant in a bedroom and when she emerged, wearing only a sheet, she was crying and saying, “I didn’t want to do it.” Because of County Court’s Rape Shield Law determination, defendant was prohibited from introducing, among other things, R.S.’s statement to the police that K.D. was crying because she was upset that she had sex with Steven A.

The jury acquitted defendant of rape in the first degree, but convicted him of rape in the second degree and three counts of endangering the welfare of a child. Defendant appealed, contesting, inter alia, County Court’s rape shield and jury selection rulings. The Appellate Division affirmed, finding no error or abuse of discretion by County Court in its discharge of one juror and failure to disqualify another and rejecting defendant’s Rape Shield Law argument (67 AD3d 1052 [2009]). This Court now affirms.

Defendant contends that the trial court erred by rejecting evidence of K.D.’s sexual activity with another person around the time of the incident pursuant to CPL 60.42 (5). CPL 60.42 declares “[e]vidence of a victim’s sexual conduct” inadmissible in a prosecution for a sex offense under article 130 of the Penal Law, except in certain circumstances. CPL 60.42 provides five statutory exceptions. “The first four allow evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances,” and the fifth, the subdivision at issue here, “vest[s] discretion in the trial court” (People v Williams, 81 NY2d 303, 311 [1993]). Pursuant to subdivision (5), evidence of a victim’s prior sexual conduct may be introduced upon a determination by the court that such evidence is “relevant and admissible in the interests of justice” (CPL 60.42 [5] [emphasis added]).

The Legislature specifically intended the Rape Shield Law to limit the inquiry into “a victim’s past sex life in prosecutions for sex offenses” because it found that such evidence, in forcible rape cases, rarely “elicits testimony relevant to the issues of the victim’s consent on credibility, but serves only to harass the alleged victim and confuse the jurors” (Mem of Assemblyman Stanley Fink, 1975 NY Legis Ann, at 47-48).

We recognize that, “in the interests of justice,” evidence of a complainant’s sexual conduct may be admissible if it is relevant to a defense (see generally People v Jovanovic, 263 AD2d 182, 198 [1st Dept 1999] [application of section 60.42 (5) to redacted e-mails—containing evidence to which the Rape Shield Law would have applied—because they were “highly relevant to establishing the defense”]). In contrast, such evidence must be precluded if it does not tend to establish a defense to the crime because it will only harass the victim and possibly confuse the jurors.

In this case, County Court appropriately accepted the defendant’s argument that evidence of the complainant’s sexual conduct that evening would be relevant to his defense if the People introduced evidence of her bruising caused by sexual contact and attributed such evidence to him. Such evidence would have been relevant to both charges of rape, but the People decided not to offer evidence of bruising. Defendant argues that R.S.’s statement to the police—that K.D. told her that she was crying because she had sex with Steven A.—should have been admitted pursuant to CPL 60.42 (5) because it raised an alternative basis for admissibility since the People presented proof that the victim was crying when she emerged from the bedroom with defendant to buttress their proof of forcible compulsion. Since it would have been probative, if at all, of only the forcible rape charge and defendant was acquitted of that count, we need not resolve whether the trial court abused its discretion in declining to admit that evidence.

Defendant also assigns error to the trial court’s rulings regarding whether to exclude two jurors for cause. However, no abuse of discretion is apparent (see CPL 270.15 [4]; CPL 270.20).

Pursuant to CPL 270.15 (4), a court may allow a challenge of a sworn juror for cause, prior to the time a witness is sworn at the trial, where the challenge is made upon a ground that was not known to the challenging party before the trial juror was sworn (see also People v Harris, 57 NY2d 335, 349 [1982]). Additionally, CPL 270.20 (1) specifically enumerates the grounds upon which a prospective juror may be challenged for cause. CPL 270.20 (1) (b) focuses on the prospective juror’s state of mind to render an impartial verdict, and subdivision (1) (c) addresses any relationship between the juror and a person involved in the criminal action which could affect the juror’s impartiality.

Although County Court failed to make a probing inquiry regarding the sworn juror’s ability to render an impartial verdict, its discharge was not error as such action is authorized by CPL 270.15 (4). Furthermore, this Court has noted that a “trial court should lean toward disqualifying a prospective juror of dubious impartiality, rather than testing the bounds of discretion by permitting such a juror to serve” (People v Branch, 46 NY2d 645, 651 [1979]; see also People v Blyden, 55 NY2d 73, 78 [1982] [“The costs to society and the criminal justice system of discharging the juror are comparatively slight, while the costs in fairness to the defendant and the general perception of fairness of not discharging such a juror are great”]).

Likewise, there was no error in refusing to disqualify a prospective juror due to a former professional relationship (see People v Provenzano, 50 NY2d 420 [1980] [trial court did not abuse its discretion in permitting an acquaintance and supporter of the District Attorney to serve as a juror]). Because the relationship between the prosecutor and prospective juror was distant in time and limited in nature, County Court did not abuse its discretion by permitting this juror to serve.

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

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

Order affirmed.

       CPL 60.42 states: “Evidence of a victim’s sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty of the penal law [‘Sex Offenses’].” Subdivision (5) permits such evidence if a court determines “after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice.”