author: Fahey, J. Abdus-Salaam, J.

text:
    [31 NE3d 103, 8 NYS3d 641]
    The People of the State of New York, Respondent, v Paul Williams, Appellant.
    Argued February 19, 2015;
    decided April 7, 2015

      POINTS OF COUNSEL

      Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), for appellant.
    I. The trial court committed reversible error by allowing the prosecutor to comment on and question a police witness about the fact that Paul Williams remained silent, and by refusing to provide a limiting instruction. (People v Adessa, 89 NY2d 677; People v Christman, 23 NY2d 429; People v Bianculli, 9 NY2d 468; People v Rutigliano, 261 NY 103; People v De George, 73 NY2d 614; Doyle v Ohio, 426 US 610; People v Basora, 75 NY2d 992; People v Savage, 50 NY2d 673; People v Hunt, 18 AD3d 891; People v Moxley, 138 AD2d 951.) II. The trial court committed reversible error during jury selection by refusing to permit Paul Williams to exercise a peremptory challenge. (People v McQuade, 110 NY 284; People v Roberts, 215 AD2d 148; People v Alston, 88 NY2d 519; People v Jabot, 93 AD3d 1079; People v Harris, 57 NY2d 335; People v Leakes, 284 AD2d 484; People v Smith, 278 AD2d 75; People v Luciano, 10 NY3d 499; People v Quinones, 222 AD2d 208; People v Rincon, 40 AD3d 538.) III. The conviction of first-degree sexual abuse must be reversed because the trial court improperly charged the jury with respect to a theory that was not reflected in the indictment and bill of particulars. (People v Grega, 72 NY2d 489; People v Kaminski, 58 NY2d 886; People v Miles, 289 NY 360; People v Martinez, 83 NY2d 26; People v Iannone, 45 NY2d 589; Russell v United States, 369 US 749; Matter of Corbin v Hillery, 74 NY2d 279; People v Hemingway, 85 AD3d 1299; People v Fulwood, 86 AD3d 809; People v Contes, 60 NY2d 620.)

      William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell and Misha A. Coulson of counsel), for respondent.
    I. Defendant was not denied a fair trial by the evidence that allowed the jury to compare defendant’s grand jury testimony to his initial interview by the police. (People v Gray, 86 NY2d 10; People v Belge, 41 NY2d 60; People v Tonge, 93 NY2d 838; People v Bowen, 50 NY2d 915; Berghuis v Thompkins, 560 US 370; United States v Goldman, 563 F2d 501; Vitali v United States, 383 F2d 121; People v Savage, 50 NY2d 673, 449 US 1016; People v Harris, 25 NY2d 175, 401 US 222; Jenkins v Anderson, 447 US 231.) II. The trial court did not improperly prevent defendant from exercising a peremptory challenge. (People v Gray, 86 NY2d 10; People v Chestnut, 19 NY3d 606; People v Patterson, 39 NY2d 288; People v Becoats, 17 NY3d 643; People v Alston, 88 NY2d 519; People v Colville, 20 NY3d 20; People v Ferguson, 67 NY2d 383; People v McGrew, 103 AD3d 1170; People v Rosario-Boria, 110 AD3d 1486; People v Jabot, 93 AD3d 1079.) III. The record does not support a finding that defendant was convicted of sexual abuse in the first degree on a theory not alleged in the indictment. (People v Grega, 72 NY2d 489; People v Smalls, 55 NY2d 407; People v Turner, 5 NY3d 476.)
   OPINION OF THE COURT

Fahey, J.

This appeal concerns the People’s references in their case-in-chief to defendant’s selective silence during custodial interrogation, after defendant had waived his Miranda rights and agreed to speak to the police. We hold, as a matter of state evidentiary law, that evidence of a defendant’s selective silence generally may not be used by the People as part of their casein-chief, either to allow the jury to infer the defendant’s admission of guilt or to impeach the credibility of the defendant’s version of events when the defendant has not testified.

I

On August 30, 2008, defendant, the victim’s former boyfriend, arrived at the victim’s apartment unannounced. According to the victim’s trial testimony, defendant gained entry to the apartment by means of a ruse and then raped her in the bathroom of the apartment; she testified that the bathroom sink crashed to the floor as she struggled with defendant. After defendant left the apartment, the victim called the police, and defendant was taken into custody. The detective who interviewed defendant advised him of his Miranda rights. Defendant stated that he understood those rights and that he was willing to speak with the detective, but he refused to sign the Miranda form.

Defendant was evasive during the ensuing interview. Defendant admitted that he knew the victim, but when the detective asked him specific questions about the incident, defendant either did not respond or repeated the detective’s questions back to him. When asked whether he had sex with the victim, defendant did not answer. While the police were transporting defendant to his arraignment, defendant admitted that he had been in the victim’s kitchen earlier that day.

Saliva taken from the victim’s shoulder and left breast matched defendant’s DNA. In addition, the victim had a bruise and scratches on her body, and the sink in her bathroom was broken off from the wall.

Defendant was charged with rape in the first degree, burglary in the second degree, sexual abuse in the first degree, rape in the third degree, and criminal impersonation in the first degree. After a Huntley hearing, County Court denied defendant’s motion to suppress his statements to the police.

At trial, the prosecutor told the jurors during opening statements that they would hear defendant’s grand jury testimony, during which defendant asserted that he and the victim' had consensual sex in the bathroom of her apartment on the day in question. The prosecutor further stated that the jury would be able to compare defendant’s grand jury testimony with defendant’s statements to the detective during the custodial interview, which the prosecutor characterized as “not outright denying what ha[d] happened, but not admitting to it either.”

During her opening statement, defense counsel told the jury that defendant had a right to refuse to speak to the police and that his silence should not be used against him. Defense counsel later objected to the part of the prosecutor’s opening referring to defendant’s postarrest silence. County Court refused to issue a curative instruction. The court reasoned that defense counsel had adequately responded to the prosecutor’s opening statement in her own opening statement.

The court permitted the detective who had interviewed defendant to testify, over defense counsel’s objection, as follows:

“[THE PROSECUTOR]: Did you ever specifically ask [defendant] if he had sex with [the victim]?
“[THE DETECTIVE]: Yes.
“Q. And what was his response?
“A. He didn’t answer.
“Q. He didn’t answer?
“A. No.
“Q. Did he deny it? . . .
“A. No.”

Later during the People’s direct case, the court admitted defendant’s grand jury testimony in evidence. Defendant did not testify at trial and did not present any evidence.

During closing arguments, the People again noted defendant’s failure to respond when the detective asked defendant whether he had sex with the victim. Defense counsel made no specific objection to this portion of the prosecutor’s closing argument. The People argued that in light of defendant’s failure to respond to that question, defendant’s grand jury testimony that the sex was consensual should be deemed to be incredible and a fabrication concocted by defendant after he learned that the saliva on the victim’s body matched his DNA. The jury subsequently convicted defendant of sexual abuse in the first degree, rape in the third degree, and criminal impersonation in the first degree.

The Appellate Division modified County Court’s judgment in respects that are not pertinent here and, as modified, affirmed (107 AD3d 1391 [4th Dept 2013]). The Court determined that defendant’s contention regarding the People’s use of his selective silence was preserved with respect to the prosecutor’s opening statement and the detective’s testimony (see id. at 1393). The Court further determined that defendant’s contention with respect to the prosecutor’s closing argument was unpreserved, but it addressed that part of defendant’s contention as a matter of discretion in the interest of justice (see id.). On the merits, the Appellate Division held that the comments by the prosecutor concerning defendant’s postarrest silence during opening and closing statements were improper and that County Court erred in admitting into evidence that portion of the detective’s testimony concerning defendant’s selective silence (see id. at 1394). The Appellate Division further concluded, however, that “any such errors were harmless beyond a reasonable doubt” (id. [internal quotation marks omitted]).

A Judge of this Court granted defendant leave to appeal (22 NY3d 1160 [2014]). We now reverse.

II

As a preliminary matter, we agree with the Appellate Division that defendant’s contention regarding the People’s use of his selective silence was preserved as to the prosecutor’s opening statement and the detective’s testimony, but not as to the prosecutor’s closing statement. Consequently, we do not consider defendant’s challenge to the prosecutor’s closing argument.

It is a well-established principle of state evidentiary law that evidence of a defendant’s pretrial silence is generally inadmissible (see People v Rutigliano, 261 NY 103, 106-107 [1933]). In People v Conyers (52 NY2d 454 [1981]), we extended that principle and held that, absent circumstances not present in that case, “our State rules of evidence preclude the use of a defendant’s pretrial silence to impeach his trial testimony” (id. at 457) . This was so because a defendant’s silence is generally ambiguous and “of extremely limited probative worth” {id. at 458) . We noted that there are many reasons why an individual may choose not to speak to police that are wholly unrelated to the veracity of his or her trial testimony, but that there is a substantial risk that jurors might “construe such silence as an admission and . . . draw an unwarranted inference of guilt” (id. at 458-459).

We subsequently held in People v De George (73 NY2d 614 [1989]) that our decision in Conyers applied to a defendant’s “pretrial” silence and was not limited to “postarrest” silence {id. at 619-620). We reiterated that, as a matter of state evidentiary law, the People generally may not use evidence of defendant’s pretrial silence either on their direct case or to impeach the defendant’s trial testimony {see id. at 617-618).

There may be a rare set of circumstances in which it is permissible for the People to refer to a defendant’s silence during their case-in-chief. However, the general evidentiary principles established in Conyers and De George remain in place today: the People generally may not refer to a defendant’s silence during their direct case, and, absent unusual circumstances, the People may not use a defendant’s silence to impeach his or her trial testimony.

We have twice held that such unusual circumstances existed. In People v Rothschild (35 NY2d 355 [1974]), the defendant, a police officer, was accused of larceny by extortion for his conduct in threatening members of the victim’s family in order to obtain money from the victim. At trial, the defendant testified that he had agreed to accept money from the victim in order to arrest the victim for bribery. On cross-examination, the prosecutor elicited from defendant that he had not told any of his superior officers after his arrest about the victim’s supposed bribe offer. We held that such inquiry on cross-examination was permissible because the defendant had a duty to inform his superior officers of any bribe and, in light of that duty, his failure to speak was “patently inconsistent with the defense asserted” (id. at 360).

In People v Savage (50 NY2d 673 [1980], cert denied 449 US 1016 [1980]), the defendant was arrested on charges of intentionally shooting the victim during an altercation. The defendant confessed to the arresting officer that he had shot the victim. During trial, the defendant testified that the victim had attempted to rob him and that the discharge of the gun was inadvertent. On cross-examination, the prosecutor asked the defendant whether he had told the arresting officer that the victim had attempted to rob him. We held, as a matter of state evidentiary law, that such questioning was permissible impeachment because defendant’s conspicuous omission of these exculpatory facts in his voluntary statement to police tended to show that his trial testimony was a recent fabrication. We recognized in Savage, however, that “reference to the omission, because of its negative nature, could not serve substantively as evidence in chief to prove the commission of the crime” (id. at 679-680).

The People contend that the circumstances present in this case are analogous to those present in Savage and Rothschild, and that the general principles articulated in Conyers and De George do not control. We disagree.

This case is fundamentally different from Savage and Rothschild. In those cases, the People used conspicuous omissions from the defendants’ statements to police during cross-examination of the defendants, in order to impeach the credibility of the exculpatory testimony provided by the defendants at trial. Here, by contrast, the People introduced, as part of their case-in-chief, evidence regarding defendant’s failure to tell the detective during custodial interrogation that he and the victim had consensual sex. Later during their case-in-chief, the People also introduced defendant’s grand jury testimony, during which defendant insisted that he and the victim had consensual sex. The People’s use of defendant’s silence during their case-in-chief therefore violated our common-law rules of evidence (see De George, 73 NY2d at 618). Inasmuch as defendant did not testify at trial, there is no need for us to consider whether unusual circumstances such as those present in Savage and Rothschild would have allowed the People to use defendant’s selective silence to impeach him if he had testified (see Conyers, 52 NY2d at 459).

The People claim that they were essentially impeaching the defendant’s grand jury testimony because evidence of defendant’s omission was necessary to demonstrate that the version of events he told the grand jury was false. The People also contend that the admission of defendant’s grand jury testimony was helpful to defendant, because had the People not presented that testimony to the jury, defendant “would have had to testify in order to put his claim of consensual sex before the jury.” These arguments are without merit. The People may not introduce evidence that they deem favorable to defendant on their direct case and impeach that evidence, also on their direct case, with evidence of defendant’s silence.

Furthermore, although evidence of defendant’s silence was inadmissible during any part of the People’s direct case, the People’s claim that their purpose was to impeach defendant’s grand jury testimony is weakened by the fact that they introduced evidence of defendant’s silence before they introduced his grand jury testimony. Thus, at the time that the detective testified that defendant neither admitted nor denied having sex with the victim, there was no contrary version of events to impeach. The risk that the jurors drew an improper inference of guilt was therefore even greater.

There is no need to depart from the principles articulated in De George and Conyers merely because defendant’s silence here was only partial. If silence could constitute an answer, then the People could meet their burden simply by asking a question. Moreover, evidence of a defendant’s selective silence “is of extremely limited probative worth” (Conyers, 52 NY2d at 458). A defendant who agrees to speak to the police but refuses to answer certain questions may have the same legitimate or innocent reasons for refusing to answer as a defendant who refuses to speak to the police at all (see id,.). Furthermore, the potential risk of prejudice from evidence of a defendant’s selective silence is even greater than the risk to a defendant who chooses to remain totally silent. Jurors are more likely to construe a defendant’s refusal to answer certain questions as an admission of guilt if the defendant has otherwise willingly answered other police inquiries. The ambiguous nature and limited probative worth of a defendant’s selective silence is outweighed by the substantial risk of prejudice to the defendant from admission of such evidence (see id. at 459). Evidence of a defendant’s selective silence therefore generally may not be used by the People during their case-in-chief and may be used only as “a device for impeachment” of a defendant’s trial testimony in limited and unusual circumstances (Savage, 50 NY2d at 680; see Conyers, 52 NY2d at 459).

The People’s use of defendant’s selective silence in this case was improper for another reason. In her opening statement, the prosecutor told the jury that defendant did not admit or deny the accusations when he spoke to the detective. Furthermore, during direct examination of the detective, the prosecutor elicited testimony establishing not only that defendant did not answer when asked whether he had sex with the victim, but also that he did not deny it either. In addition to using defendant’s selective silence as a purported impeachment device during their direct case, the People also invited the jury to infer an admission of guilt from defendant’s failure to deny the accusations. The risk that the jury made such an impermissible inference is substantial where, as here, defendant selectively answered some police questions but not others, and the court refused to provide any curative instruction. The prosecutor’s comments regarding defendant’s selective silence during opening statements were improper, and the court erred in allowing testimony concerning defendant’s selective silence at trial, inasmuch as the comments and testimony allowed the jury to “draw an unwarranted inference of guilt” (Conyers, 52 NY2d at 459).

In light of our holding that the People’s use of defendant’s selective silence violated our common-law evidentiary principles, we need not address defendant’s contention that the People’s use of his selective silence also violated the State and Federal Constitutions (see De George, 73 NY2d at 618; Conyers, 52 NY2d at 457).

m

The People contend, in the alternative, that any error was harmless. Under the standard applicable to nonconstitutional errors, an error is harmless if the proof of defendant’s guilt is overwhelming and there is no significant probability that the jury would have acquitted defendant had the error not occurred (see People v Crimmins, 36 NY2d 230, 242 [1975]).

We conclude that the errors are not harmless as a matter of law. Even assuming that the evidence of defendant’s guilt is overwhelming, there is a significant probability that the jurors would have acquitted defendant if the errors did not occur. For the reasons discussed above, evidence of defendant’s selective silence is highly prejudicial, and there is a significant risk that the jurors deemed defendant’s failure to answer the detective’s question as to whether he had sex with the victim to be an admission of guilt. Moreover, the court refused to provide a curative instruction to the jury after the prosecutor referred to defendant’s selective silence during her opening statement.

We do not place as much significance as our dissenting colleagues on defendant’s response to the detective during custodial interrogation (see dissenting op at 196). Although it is true that the detective had not said anything to defendant “about breaking down a door,” the detective told defendant that “the reason why you’re here today is that it’s being alleged that you forced your way into [the victim’s] apartment and had sex with her.” Defendant responded, “Honestly, do you think I just broke down the door?” Inasmuch as the detective had just told defendant that he was accused of forcing his way into the victim’s apartment, defendant’s response was consistent with a denial of that accusation and with his later admission that he was in the victim’s apartment that day. Furthermore, defendant’s response was in agreement with the version of events that he later told the grand jury: that he and the victim had consensual sex after she ultimately allowed him into her apartment. We therefore respectfully disagree with our dissenting colleagues that defendant’s response to the detective “revealed his knowledge of the breaking and entering aspect of the crime at a time when such knowledge could only have flowed from his participation in the offense” and that his response was evidence of his consciousness- of guilt (dissenting op at 196). Rather, defendant’s response to the detective was just as compatible with a denial of the accusation that he had forced his way into the victim’s apartment. We therefore hold that the error was not harmless and that reversal is required.

In light of our decision that there must be a new trial, we have no need to address defendant’s remaining contentions.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Abdus-Salaam, J.

(dissenting). I agree with the majority that the trial court erred in permitting the People to adduce evidence of, and comment upon, defendant’s partial postarrest silence on their case-in-chief, for state evidentiary law barred the admission of that evidence (see majority op at 188, 190-194; see also People v De George, 73 NY2d 614, 617-620 [1989]; People v Conyers, 52 NY2d 454, 457-459 [1981]). As the majority’s excellent and learned discussion of our case law in this area reveals (see majority op at 190-192), only the most unusual circumstances will justify the admission of a defendant’s post-arrest silence on the People’s direct case, and no such circumstances exist here. However, unlike the majority (see majority op at 194-195), I find that the error was harmless on account of the overwhelming quality of the proof against defendant and the limited prejudice occasioned by the evidence of his silence. While I acknowledge that reasonable minds may differ on the harmless error issue presented by this case, my disagreement with the majority on this subject nonetheless prompts me to respectfully dissent.

As the majority rightly points out (see majority op at 190-191, 193-194), evidence of postarrest silence has limited probative value and risks improperly prejudicing a defendant by causing the jurors to speculate that the defendant remained silent in an effort to hide his or her guilt (see Conyers, 52 NY2d at 459). But, here, defendant’s silence in the face of police questioning, which should have been excluded from evidence, was scarcely any more harmful than the properly admitted evidence that he had revealed his knowledge of the breaking and entering aspect of the crime at a time when such knowledge could only have flowed from his participation in the offense.

In that regard, defendant’s girlfriend told the police and, later, the jury, that on the day of the crime, defendant had pretended to be a police officer in order to convince her to open the door to her apartment. When she opened the door and saw defendant, she tried to close it again, but he pushed it open to force his way into the apartment, at which point she succumbed to a combination of his physical effort and oral entreaties. During their interview with defendant, the police did not disclose this information to him. Nonetheless, defendant told the police, “Honestly, do you think that I just broke the door down?” At the Huntley hearing, the court ruled this statement admissible, and therefore the jury properly received it regardless of whether they should have learned of defendant’s postarrest silence. Having heard that statement, the jury surely would have inferred that defendant was conscious of his own guilt insofar as he knew that he had used a ruse and then physical force to effectively break into the apartment to commit the crime. Consequently, the forbidden evidence of defendant’s postarrest silence did not significantly impact the outcome of the trial because, absent that evidence, the jury still would have drawn an adverse inference from defendant’s interactions with the police based on the admissible evidence (see People v Crimmins, 36 NY2d 230, 242 [1975]).

Furthermore, the evidence of defendant’s guilt was overwhelming (see id.; see also People v Boop, 118 AD3d 1273, 1273 [4th Dept 2014], lv denied 24 NY3d 1082 [2014]; see generally Conyers, 49 NY2d at 183). After all, even without the contested proof of defendant’s silence, the jury still would have received the following fully admissible testimonial evidence: (1) defendant’s girlfriend’s consistent testimony, which in essential substance matched her statement to the police, that defendant had used a ruse to convince her to open the door to the apartment, that he had pushed the door open when she tried to close it on him, that he had brutally raped her, that she had called a friend to come to her aid and that she had reported the rape to the friend, who called the police; (2) the testimony of the friend, Nicole Veaudry, that the girlfriend had summoned her to the apartment immediately after the incident, had reported that something had occurred, had been shaking and crying, and had prompted Veaudry to call the police; (3) the testimony of police officers that the girlfriend was still upset when they responded to the 911 call and that the bathroom sink in her apartment had been dislodged; (4) the testimony that, in response to police questioning, defendant said, “Honestly, do you think that I just broke the door down?”; and (5) defendant’s grand jury testimony, in which he delivered an account of events that seemed to be tailored to match the medical and other evidence, which he admitted having reviewed prior to his testimony.

Additionally, without knowledge of defendant’s postarrest silence, the jurors still would have learned of the following physical evidence and explanatory testimony: (1) DNA evidence showing that defendant left his saliva on several of his girlfriend’s body parts during the incident; (2) physical evidence of numerous cuts and a hand-shaped mark on the girlfriend’s body; (3) physical evidence of a laceration between the girlfriend’s vagina and anus; and (4) the sexual assault nurse examiner’s testimony that this injury had been caused by blunt force trauma, that it was consistent with forcible sexual assault and that, while it could have theoretically occurred during consensual sex, the nature and location of the injury rendered a consent scenario unlikely. Given that the physical evidence corroborated defendant’s girlfriend’s account of a forcible rape and the testimonial proof thoroughly reinforced her credibility while undermining defendant’s, the evidence overwhelmingly established defendant’s guilt of the crimes of which he was convicted.

In sum, while I certainly do not condone the People’s use of defendant’s postarrest silence against him, I conclude that the error was harmless, for the introduction of that evidence was not the likely source of his conviction. Rather, it was the highly persuasive and admissible proof of defendant’s guilt that ultimately led to the verdict here. Furthermore, I find defendant’s remaining contentions to be either unpreserved or lacking in merit. Accordingly, I respectfully dissent and vote to affirm the Appellate Division’s order.

Chief Judge Lippman and Judges Read, Rivera and Stein concur; Judge Abdus-Saeaam dissents in an opinion in which Judge Pigott concurs.

Order reversed and a new trial ordered.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [31 NE3d 1197, 9 NYS3d 601]
    In the Matter of Edwin Lopez, Respondent, v Andrea Evans, Chairwoman, New York State Division of Parole, Appellant.
    Argued February 12, 2015;
    decided April 7, 2015

      POINTS OF COUNSEL Eric T. Schneiderman, Attorney General, New York City (Steven C. Wu, Won S. Shin, Barbara D. Underwood and Richard P. Dearing of counsel), for appellant.
    I. Due process does not bar revocation proceedings for an incompetent parolee where assistance of counsel is provided. (Gagnon v Scarpelli, 411 US 778; Vitek v Jones, 445 US 480; Pennsylvania Bd. of Probation & Parole v Scott, 524 US 357; Morrissey v Brewer, 408 US 471; People ex rel. Maiello v New York State Bd. of Parole, 65 NY2d 145; People ex rel. Newcomb v Metz, 64 AD2d 219; People ex rel. Porter v Smith, 71 AD2d 1056; United States v McCarty, 747 F Supp 311; United States v Avery, 328 F Supp 2d 1269; People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376.) II. The First Department’s bar would undermine the effectiveness of the parole system. (Gagnon v Scarpelli, 411 US 778; Black v Romano, 471 US 606; Spavone v New York State Dept. of Corr. Servs., 719 F3d 127; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430; Jones v United States, 463 US 354; People ex rel. Newcomb v Metz, 64 AD2d 219; State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607; Pennsylvania Bd. of Probation & Parole v Scott, 524 US 357; People v Recor, 87 NY2d 933; Medina v California, 505 US 437.)

      The Legal Aid Society, New York City (Elon Harpaz and Scott A. Rosenberg of counsel), for respondent.
    The First Department correctly held that fundamental fairness precludes the State from revoking the parole of an individual who lacks the capacity to assist in his own defense. (US Const Amend XIV; NY Const, art I, § 6.) (Morrissey v Brewer, 408 US 471; Drope v Missouri, 420 US 162; Pate v Robinson, 383 US 375; Dusky v United States, 362 US 402; Cooper v Oklahoma, 517 US 348; People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376; Gagnon v Scarpelli, 411 US 778; People ex rel. Calloway v Skinner, 33 NY2d 23; People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76; Pennsylvania Bd. of Probation & Parole v Scott, 524 US 357.)

      Stroock & Stroock & Lavan LLP, New York City (Curtis C. Mechling, Patrick N. Petrocelli and Benjamin C. Woodruff of counsel), for The Fortune Society, amicus curiae.
    I. Incarcerating mentally incompetent parolees violates due process. (Morrissey v Brewer, 408 US 471; People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376; Drope v Missouri, 420 US 162; United States v McCarty, 747 F Supp 311.) II. Appellant’s public safety argument is misguided and unsubstantiated. (Matter of Welkes v Brennan, 79 AD2d 644.) III. Alternatives to incarceration would benefit parolees, pose no threat to public safety, and enhance the Department of Corrections and Community Supervision’s ability to rehabilitate parolees.

      The Association of the Bar of the City of New York, New York City (Allegra Glashausser, Katherine Bromberg, Matthew Main and Elizabeth Sisul of counsel), for The Association of the Bar of the City of New York, amicus curiae.
    I. Because a person found mentally incompetent to stand trial cannot meaningfully participate in the fact-finding process to determine whether he has violated parole, conducting a parole revocation proceeding against that person violates due process. (Morrissey v Brewer, 408 US 471; People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376; Gagnon v Scarpelli, 411 US 778; People ex rel. Donohoe v Montanye, 35 NY2d 221; People ex rel. McGee v Walters, 62 NY2d 317; Riggins v Nevada, 504 US 127; Youtsey v United States, 97 F 937; Dusky v United States, 362 US 402; People v Phillips, 16 NY3d 510; People v Mendez, 1 NY3d 15.) II. Revoking parole and reincarcerating people found incompetent to stand trial is counter to public policy, public safety, and rehabilitation. (Rivers v Katz, 67 NY2d 485; People v Notey, 72 AD2d 279; Matter of State of New York v Daniel OO., 88 AD3d 212; Tison v Arizona, 481 US 137; United States v Blake, 89 F Supp 2d 328; People v Andrea FF., 185 AD2d 557; Morrissey v Brewer, 408 US 471.)

      Cleary Gottlieb Steen & Hamilton LLP, New York City {Thomas J. Moloney, Mark S. Grube, Armine Sanamyan and Elizabeth Danielle Byam of counsel), for Mental Hygiene Legal Service, amicus curiae.
    I. Due process prohibits a parole revocation hearing against an alleged parole violator lacking capacity to assist in his or her own defense. (Morrissey v Brewer, 408 US 471; Matter of Mayfield v Evans, 93 AD3d 98; People ex rel. Knowles v Smith, 54 NY2d 259; Gagnon v Scarpelli, 411 US 778; People ex rel. Matthews v New York State Div. of Parole, 58 NY2d 196; People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376; People ex rel. Combs v La Vallee, 29 AD2d 128; Mathews v Eldridge, 424 US 319; Armstrong v Manzo, 380 US 545; Drope v Missouri, 420 US 162.) II. Until the legislature establishes procedures for competency determinations in parole revocation proceedings, this Court should provide guidance. (People v Finkelstein, 9 NY2d 342; Matter of Buttonow, 23 NY2d 385; Ring v Arizona, 536 US 584; Rivers v Katz, 67 NY2d 485; People v Gensler, 72 NY2d 239; People v Armlin, 37 NY2d 167; People v Gelikkaya, 84 NY2d 456; Ritter v Surles, 144 Misc 2d 945; Matter of Hines v State Bd. of Parole, 293 NY 254; Matter of Ahlers v New York State Div. of Parole, 1 AD3d 849.) III. The proposed remedies are not unduly burdensome under Mathews v Eldridge (424 US 319 [1976]).
   OPINION OF THE COURT

Pigott, J.

We hold that when a parolee lacks mental competency to stand trial, it is a violation of his or her due process rights to conduct a parole revocation hearing. In light of our concerns about the application of the pertinent statutes to such individuals, we urge the legislature to address the issues raised by the parties to this litigation.

L

In 1999, petitioner Edwin Lopez, who had been convicted of murder and was serving a sentence of 15 years to life in prison, was released on lifetime parole supervision. Four years later, he was charged with misdemeanor assault. He was found to be unfit to stand trial under CPL 730.40 (1), which governs proceedings related to a criminal defendant’s fitness to proceed to trial. Lopez was committed to the custody of the Office of Mental Health (OMH), under CPL 730.40 (2). The assault charge was dismissed pursuant to the same subdivision, which provides that when a defendant who has been charged with a misdemeanor is found to be unfit to stand trial and committed to OMH’s custody, the criminal court is required to dismiss the accusatory instrument. Lopez was admitted to a psychiatric center and, subsequently, OMH retained custody by a series of retention orders and voluntary admissions under Mental Hygiene Law article 9 (Hospitalization of the Mentally 111).

On August 11, 2008, while still committed, Lopez attacked a fellow patient, resulting in assault and harassment charges. Criminal Court ordered a psychiatric examination pursuant to CPL article 730 to determine his fitness to stand trial. The two psychologists who examined him opined that Lopez was not competent to stand trial. They found that Lopez likely suffered from dementia, which “would prevent [him] from constructing a rational defense and collaboratively working with his attorney.” He was “unable to talk about his case in any intelligent fashion.” Criminal Court adopted the psychologists’ findings and the charges were dismissed. Lopez was again committed to the custody of OMH pursuant to CPL 730.40 (2).

Meanwhile, the New York State Department of Corrections and Community Supervision (DOCCS) commenced parole revocation proceedings against Lopez, based on the August 11 incident, charging him with violating a condition of his parole, 9 NYCRR 8003.2 (h) (“A releasee will not behave in such manner as to violate the provisions of any law to which he is subject which provides for penalty of imprisonment, nor will his behavior threaten the safety or well-being of himself or others”).

As a result, Lopez was transferred from the custody of OMH to that of DOCCS. At the start of the final revocation hearings, Lopez’s appointed counsel requested an adjournment stating that she needed time to assess Lopez’s mental condition. Counsel contended that the revocation hearing was being held in violation of her client’s due process rights. The Administrative Law Judge (ALJ) denied counsel’s request. Testimony was heard regarding the alleged assault, and the ALJ found that Lopez had violated 9 NYCRR 8003.2 (h).

During the dispositional phase of the parole revocation hearings, Lopez’s counsel offered the testimony of a social worker who opined that “the best thing” for Lopez would be for him to be restored to parole and returned to OMH’s custody. The ALJ, however, recommended parole revocation, determining that reincarceration was appropriate, with a 24-month time assessment. Lopez was “a violent offender,” the ALJ wrote. “He assaulted another patient at the hospital. Given his past criminal history this action ... is especially serious. He is not currently amenable to parole supervision. Alternatives to incarceration were considered but are not appropriate.”

The Division of Parole adopted the AL J’s recommendation on December 12, 2008, and Lopez was incarcerated. His administrative appeal was denied.

IL

In August 2010, while incarcerated, Lopez, represented by counsel, commenced this CPLR article 78 proceeding, seeking to annul the determination of the Division of Parole, vacate the parole revocation, and obtain release from custody. Counsel contended that due process prohibits the Division of Parole from proceeding with a revocation hearing against a person who has been deemed mentally unfit to proceed to trial. The Division of Parole moved to deny Lopez’s petition.

Supreme Court granted the motion and dismissed the proceeding, holding that an assertion of incompetency does not bar parole revocation proceedings. The court cited People ex rel. Newcomb v Metz (64 AD2d 219 [3d Dept 1978]) and Matter of Newcomb v New York State Bd. of Parole (88 AD2d 1098 [3d Dept 1982], lv denied 57 NY2d 605 [1982], cert denied 459 US 1176 [1983]). Those decisions held that the Parole Board must consider a parolee’s lack of mental competency as a mitigating factor when considering alleged parole violations, but “a determination of this question is not a condition precedent to the parole revocation proceeding” (Metz, 64 AD2d at 223; see New York State Bd. of Parole, 88 AD2d at 1098-1099; accord People ex rel. Porter v Smith, 71 AD2d 1056 [4th Dept 1979]).

The Appellate Division reversed, granted Lopez’s petition, and reinstated Lopez to parole, holding that “the basic requirements of due process applicable to a parole revocation proceeding should now be construed to preclude going forward with such a proceeding in the event it is determined that the parolee is not mentally competent to participate in the hearing or to assist his counsel in doing so” (104 AD3d 105, 108 [1st Dept 2012] [citation omitted]). In dicta, the Appellate Division took the position, over a single-Justice concurrence, that “the statute authorizing the Parole Board to determine whether a parolee has violated parole necessarily confers upon the Board authority to determine whether the parolee possesses the mental competence required for such a determination to be rendered in accordance with due process” (104 AD3d at 110-111).

The Division of Parole appeals as of right under CPLR 5601 (b) (1). We now affirm.

III.

In People ex rel. Menechino v Warden, Green Haven State Prison (27 NY2d 376 [1971]), this Court held that the demands of due process require that a parolee be represented by a lawyer and entitled to introduce testimony, in a parole revocation hearing, if he or she so chooses. We observed that “a proceeding to revoke parole involves the right of an individual to continue at liberty or to be imprisoned. It involves a deprivation of liberty . . . and falls within the due process provision of section 6 of article I of our State Constitution” (id. at 382 [internal quotation marks and ellipsis omitted]). We concluded that this constitutional guarantee demands representation by counsel “if the search for truth is not to be sacrificed to administrative speed and convenience” (id. at 383).

Here, once again, the constitutional question implicates the balance between the government’s interest in efficient administration of parole and the parolee’s right to defend himself or herself (see id. at 382-384; see generally Mathews v Eldridge, 424 US 319, 335 [1976]). In this calculus, truth cannot give way to efficiency. In the present case, as in most others, it is only the parolee himself or herself who is in a position to know the facts and assist in his or her defense. When the parolee, by reason of mental incapacity, is unable to understand, recall, or express such vital information, it is inconsistent with due process for a parole board to proceed with a revocation hearing.

It is, of course, well established — as a matter of common law and also of due process — that “a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial” (Drope v Missouri, 420 US 162, 171 [1975]). The State contends that parole revocation proceedings do not raise the same concerns because parole revocation is not part of a criminal prosecution.

It is true that parole revocation deprives an individual only of “a restricted form of liberty” and thus implicates “some form of due process [but] not the full panoply of rights due a defendant in a criminal proceeding” (People ex rel. Matthews v New York State Div. of Parole, 58 NY2d 196, 204 [1983], citing Morrissey v Brewer, 408 US 471, 480-484 [1972]). Just as due process requires us to safeguard the liberty of parolees, we must also recognize the State’s strong interest in effectively managing parolees without unduly burdensome procedural restraints (see Morrissey, 408 US at 483). However, in balancing these competing interests, we conclude that several of the reasons underlying the bar against prosecuting a mentally incompetent defendant apply also to parole revocation hearings. Clearly salient are constitutional concerns about the fundamental fairness of a proceeding in which a parolee who is unable to make decisions about his defense may be returned to prison. But foremost is the concern already mentioned, about the accuracy of the proceedings. An incompetent parolee is not in a position to exercise rights, such as the right to testify and the opportunity to confront adverse witnesses (see 9 NYCRR 8005.18 [b] [2], [4]), that are directly related to ensuring the accuracy of fact-finding. It is true, as the State emphasizes, that the parolee is guaranteed a right to representation by counsel at the revocation hearing. But representation is not enough. A parolee must be able to provide the factual underpinnings of the presentation.

We conclude, therefore, that holding a parole revocation hearing after a court has deemed the parolee to be mentally incompetent violates the due process provision in our State Constitution. We agree with the Appellate Division that the Newcomb decisions, relied upon by Supreme Court, should no longer be followed.

However, the State raises certain practical objections to an affirmance, which give us pause. In particular, the State points out that the Division of Parole is not authorized to commit a mentally incompetent parolee to the custody of OMH under CPL article 730, which governs the process whereby a person who has been charged with a criminal offense and found to be incompetent to stand trial is committed (see CPL 730.30; see also 1.20 [16]). A parolee, by contrast, has already been convicted of a criminal offense and sentenced. Nor does the Board of Parole or the ALJs have authority to seek commitment under Mental Hygiene Law article 9. In any case, a person who is incapacitated under CPL 730.40 (1) is not necessarily mentally ill within the meaning of article 9.

The result is that, as matters stand, a parolee who has been found mentally incompetent, and therefore unfit to proceed to a parole revocation hearing under our holding today, will likely be released into the community. As the State points out in its brief,

“the Parole Board’s only option would seemingly be to restore the mentally incompetent person to parole, even if in its judgment the person could not successfully comply with his parole conditions and would pose a risk to public safety. While the Parole Board could theoretically impose additional special parole conditions to address the parolee’s mental condition, such conditions would serve no meaningful purpose if the Board would likely be unable to revoke parole for any subsequent violation.”

In circumstances such as those presented here, the parolee falls between the cracks. He will remain in the custody of DOCCS, and therefore will not receive mental health treatment in a psychiatric facility as he would if in the custody of OMH. And, because he is no longer incarcerated, he will obviously not receive treatment in a controlled correctional setting either. Lopez himself may be receiving outpatient mental health treatment, as a special condition of parole (see 9 NYCRR 8003.3 [“A special condition may be imposed upon a releasee either prior or subsequent to release. The releasee shall be provided with a written copy of each special condition imposed”]). But the State is justified in pointing out the concern that other parolees who violate parole must be released, under the law, when they are deemed mentally incompetent, with no guarantee that they will receive treatment. It is up to the legislature to address this disparity whereby a mentally incompetent defendant who has been charged with, but not convicted of, a crime may be committed to a psychiatric facility in the custody of OMH, but a parole violator who developed mental incapacity after conviction and release may not be confined at all.

A related question is whether the Division of Parole may make determinations regarding mental competency, when it reasonably appears that the parolee may be incompetent. Federal regulations assume that a federal hearing examiner may determine whether or not a parolee is mentally incompetent (see 28 CFR 2.8 [c], [e] [2]). These rulings occur in the context of a regulatory framework in which the examiner still conducts the revocation hearing, irrespective of the mental competence determination, but “shall take into full account the parolee’s mental condition in determining the facts and recommending a decision as to revocation and reparole” (28 CFR 2.8 [e] [2]). The process whereby the Division of Parole decides whether or not a parolee is mentally incompetent necessarily carries more significance when it may mean that he or she is released into the community despite a history of crime combined with mental incapacity.

The Appellate Division suggested, in dicta, that the Parole Board can assess a parolee’s competency in order to determine whether it has jurisdiction to proceed with the parole revocation proceeding. Amicus Mental Hygiene Legal Service proposes that the Parole Board apply an analog to the procedures set forth under CPL article 730 for an incapacitated defendant charged with a felony to an incapacitated parolee charged with a parole violation amounting to felonious conduct, and that the Parole Board apply something similar to the procedures set forth under CPL article 730 for an incapacitated defendant charged with a misdemeanor to an incapacitated parolee charged with a parole violation equivalent to a misdemeanor. In the present case, this issue was not directly raised because the determination that Lopez was incapacitated had already been made in the recent criminal action arising out of the same conduct. Because the issue is not presented in this case, we express no view on the Parole Board’s authority to make competency determinations in cases unlike this one where there has not been a recent judicial determination of incompetency. We note only that it seems clear that there are statutory concerns that the legislature should address.

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

Chief Judge Lippman and Judges Read, Rivera, AbdusSalaam, Stein and Fahey concur.

Order affirmed, without costs.

      . At the time, an OMH detainer, requiring that Lopez be returned to OMH’s custody if released from the custody of DOCCS, was in effect. Counsel and the social worker interpreted this to mean that Lopez would return to OMH’s custody if restored to parole and would only remain in the custody of DOCCS if parole were revoked. However, a parolee remains in the custody of the Division of Parole of DOCCS in both scenarios (see 9 NYCRR 8003.1 [a]).

      . The OMH detainer, which provided that it “EXPIRES SHOULD THE NAMED PARTY BECOME INCARCERATED,” duly expired.

      . In October 2012, the Parole Board granted an application by Lopez for discretionary release. Lopez was discharged from prison and restored to parole supervision on January 9, 2013. We agree with the Appellate Division, however, that “this appeal comes within the exception to the mootness doctrine for orders raising novel and substantial issues that are likely to recur but to evade appellate review” (104 AD3d 105, 108 n 2 [1st Dept 2012]).

      . It seems probable, however, that parole boards, mindful of our holding, will become reluctant to grant parole to otherwise eligible prisoners with any history of mental illness or mental disability in the first place.

      . For reasons not pertinent to this case, there are still offenders on federal parole, notwithstanding the abolition of parole in the federal system.


author: Abdus-Salaam, J. Pigott, J.

text:
    [32 NE3d 371, 10 NYS3d 156]
    In the Matter of David Powers, Appellant, v St. John’s University School of Law, Respondent.
    Argued February 10, 2015;
    decided April 2, 2015

      POINTS OF COUNSEL

      Scoppetta Seiff Kretz & Abercrombie, New York City {Roland R. Acevedo of counsel), for appellant.
    I. The Appellate Division erred when it held that St. John’s University School of Law’s rescission of appellant’s admission after he successfully completed three semesters based on an alleged failure to disclose uncharged criminal conduct and an unwritten and undisclosed admissions policy that ostensibly barred the admission of any applicant with a criminal history of distributing drugs was not arbitrary and capricious. (Gertler v Goodgold, 107 AD2d 481, 66 NY2d 946; Maas v Cornell Univ., 94 NY2d 87; Tedeschi v Wagner Coll., 49 NY2d 652; Matter of Carr v St. John’s Univ., N.Y., 17 AD2d 632, 12 NY2d 802; Matter of Olsson v Board of Higher Educ. of City of N.Y., 49 NY2d 408; 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 Rizvi v New York Coll, of Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d 1049; Matter of Claudia E. v Ryan, 61 AD3d 865; Matter of D'Alessandro v West Hemp-stead Fire Dist., 53 AD3d 576; Matter of Gray v Canisius Coll, of Buffalo, 76 AD2d 30.) II. The Appellate Division erred when it held that St. John’s University School of Law’s imposition of an undisclosed penalty, rescission of appellant’s admission, that was not set forth in the application for admission was not so disproportionate to the offense as to be shocking to one’s sense of fairness. (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 Harwood v Ad

      dison, 118 AD3d 1484; Matter of Grady v New York State Off. of Children & Family Servs., 39 AD3d 1157; Matter of Kickertz v New York Univ., 99 AD3d 502; Haddock v City of New York, 75 NY2d 478.)

      Garfunkel Wild, P.C., Great Neck (Michael J. Keane and Lauren M. Levine of counsel), for respondent.
    I. The Appellate Division correctly upheld St. John’s University School of Law’s decision because it was based on appellant’s failure to provide complete and truthful answers on his law school application. (Maas v Cornell Univ., 94 NY2d 87; Gertler v Goodgold, 107 AD2d 481; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Hutcheson v Grace Lutheran School, 132 AD2d 599; Matter of Harris v Trustees of Columbia Univ., 98 AD2d 58, 62 NY2d 956; Matter of Galiani v Hofstra Univ., 118 AD2d 572; Neuman Distribs. v Jacobi Med. Ctr., 298 AD2d 568; Matter of Rizvi v New York Coll, of Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d 1049; Matter of Claudia E. v Ryan, 61 AD3d 865; Matter of D'Alessandro v West Hempstead Fire Dist., 53 AD3d 576.) II. St. John’s University School of Law’s decision was not so disproportionate as to be shocking to one’s sense of fairness. (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 Quercia v New York Univ., 41 AD3d 295; Matter of Coleman v Hackley School, 251 AD2d 328; Matter of Harris v Trustees of Columbia Univ., 98 AD2d 58, 62 NY2d 956; Martin v Helstad, 699 F2d 387; Matter of Harwood v Addison, 118 AD3d 1484; Matter of Grady v New York State Off. of Children & Family Servs., 39 AD3d 1157; Yelder v Walters, 64 AD3d 762; Misicki v Caradonna, 12 NY3d 511; Matter of Shah v Union Coll., 97 AD3d 949.) III. Appellant’s challenge to St. John’s University School of Law’s decision is now moot.

      Judith M. Whiting, General Counsel, Community Service Society of New York, New York City (Kimberly D. Westcott, Paul Keefe and Alexandria Pulido of counsel), for Community Service Society of New York and others, amici curiae.
    I. A truthful answer to an ambiguous question is not misrepresentation. (Matter of Acosta v New York City Dept. of Educ., 16 NY3d 309; Matter of Exum v New York City Health & Hosps. Corp., 37 Misc 3d 1218[A], 2012 NY Slip Op 52078[U]; Eiseman v State of New York, 70 NY2d 175; Moore v Board of Regents of Univ. of State of N. Y, 44 NY2d 593; Matter of Patti Ann H. v New York

      Med. Coll., 88 AD2d 296; Matter of Rizvi v New York Coll, of Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d 1049; Matter of Olsson v Board of Higher Educ. of City of N.Y., 49 NY2d 408; Tedeschi v Wagner Coll., 49 NY2d 652; Jacobson v Sassower, 66 NY2d 991; Guardian Life Ins. Co. of Am. v Schaefer, 70 NY2d 888.) II. Screening out applicants with criminal convictions does not increase safety and perpetuates racial disparities. III. Higher education opens economic opportunities and reduces recidivism among people with criminal records. (Tedeschi v Wagner Coll., 49 NY2d 652; Klinge v Ithaca Coll., 244 AD2d 611.)
   OPINION OF THE COURT

Abdus-Salaam, J.

This proceeding pursuant to CPLR article 78 challenges a determination of St. John’s University School of Law to rescind petitioner David Powers’s admission, after he had completed three semesters of law school as a part-time student, based on material misrepresentations and omissions in his application regarding his criminal history. We agree with the Appellate Division that this determination “was not arbitrary and capricious, and does not warrant judicial intervention” (110 AD3d 888, 889 [2013]).

L

In November 2005, Powers submitted an application to St. John’s University School of Law to become a part-time law student. The application included the following question:

“Have you ever been charged with, pleaded guilty to, or been found guilty of any crime, offense, or violation (other than a minor traffic violation), or is any such action pending or expected to be brought against you? . . .
“If yes, please explain in a supplementary statement or electronic attachment the relevant facts, including the nature of the offense, the dates and courts involved, and the penalty imposed, if any. Note: Although a conviction may have been sealed or expunged from the record by an order of the court, it nevertheless should be disclosed in answer to this question.”

Powers answered the question “Yes” and submitted a three-page “Background Disclosure” in which he stated, among other things, that he was “not proud to admit that [he had] used drugs,” that in July of 1999 “[he] remembered being pulled over by the police shortly after a drug deal,” and that “[a]fter about a year, the case proceeded and [he] accepted a plea bargain to attend an inpatient rehabilitation program and complete probation.” He stated that he was convicted of “third degree possession of a controlled dangerous substance.” Powers did not, as required by the application, explain all of the relevant facts or the “nature of the offenses” for which he was charged. He had in fact been charged in the State of New Jersey with distribution of LSD, second degree; possession of LSD with intent to distribute, second degree; possession of drug paraphernalia; possession of MDMA (colloquially known as Ecstasy), third degree; possession of MDMA with intent to distribute; possession of LSD, third degree, and possession of a controlled dangerous substance in a motor vehicle.

Further, Powers did not accurately represent his convictions. He stated that he had been convicted of third-degree possession of a controlled dangerous substance, while in fact, he had pleaded guilty to second-degree distribution of LSD, and second-degree possession of LSD with intent to distribute. The plea included an agreement that if defendant entered and successfully completed an inpatient program of at least nine months including any aftercare treatment, the State would consent to the defendant withdrawing his plea and entering a guilty plea to possession with intent to distribute in the third degree, as amended, where the recommended sentence would be probation and credit for time served in the inpatient program. The record shows that defendant did in fact withdraw his plea and enter a guilty plea to possession with intent to distribute in the third degree. That is not a guilty plea to third-degree possession of a controlled dangerous substance, as Powers had reported in his application.

The omissions and misrepresentations first came to the attention of the law school after Powers had completed three semesters as a part-time student, and while he was on a leave of absence and working in Hong Kong. In September 2008, he wrote to the Senior Assistant Dean for Students, Katherine Sullivan, stating that he intended to petition the Committee on Character and Fitness for an advance ruling with respect to his past conduct and his fitness to be admitted to the New York bar, and he requested a letter of support from the law school. Powers subsequently sent Dean Sullivan a draft of his letter to the Committee on Character and Fitness, which stated, among other things, that he had used drugs habitually from age 16 to 21, that he “sometimes would sell drugs to others” and that in July 2001, he had been arrested for “distribution of LSD to an undercover officer and possession of Ecstasy.” The Dean responded to Powers that the information he had provided to the Committee on Character and Fitness was not included in his application to the law school, and that accordingly, the law school would not be providing him with a letter of support.

In November 2009, Powers applied for an extension of his leave of absence to spring 2011, which was granted. In July 2010, Powers requested from the law school a letter of good standing so that he could apply for a semester abroad in Tokyo. At that point, Dean Sullivan sought guidance from other senior administrators, including then Assistant Dean for Students-Designate Larry Cunningham. It was decided that the law school would not provide the letter, and that, because it was apparent that Powers intended to pursue his legal career, the law school would start the process that it uses with respect to misrepresentations and omissions on applications.

The school advised Powers that in order to continue at the school, he must seek to amend his application, including a full accounting of the criminal activity at issue and an explanation of why he had not disclosed it in his initial application. Powers was informed that upon receipt of the materials, the law school would determine whether the nondisclosure and underlying criminal activity warranted disciplinary action, which could include rescission of his admission to the school.

Powers responded in June 2010 by providing, among other things, a copy of his presentence report which showed the charges against him and his convictions pursuant to his plea. He had not included that report with his original application. He stated that he had consulted counsel about what he should disclose on his law school application, and that he did not see any need to amend the application because he considered the statement in his application to be adequate. He wrote that he would be in New York in July and available for a meeting.

In July 2010, Powers met with Dean Sullivan, Associate Academic Dean and Professor of Law Valentine Turano, Vice Dean Emeritus Andrew Simons and Dean Cunningham. He was given an opportunity to explain his actions and was told he could submit a written request to amend his law school application. Powers wrote to Dean Cunningham and stated, among other things, that he had looked over the statement that accompanied his application “and would like to reaffirm that there is nothing in the statement which is factually incorrect or needs to be amended. The statement addresses relevant facts, the nature of the offense, dates and the penalty imposed.” He also wrote that the presentence report clearly showed the original charges as well as the final charges and the charges that the State consented to upon his completion of a rehabilitation program. He noted that he had completed the program as required and that the State had consented to a new guilty plea of possession with intent to distribute in the third degree. He explained that although he was arrested for distribution, that was not something he did with regularity.

In September 2010, the law school notified Powers that his application contained material omissions and misrepresentations involving criminal charges brought against him, that he had subsequently advised the school that he had been charged with distribution of LSD and Ecstasy, and that the law school was rescinding his admission.

IL

Courts have a “restricted role” in reviewing determinations of colleges and universities (Maas v Cornell Univ., 94 NY2d 87, 92 [1999] [internal quotation marks omitted]). A determination will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules (Matter of Harris v Trustees of Columbia Univ. in City of N.Y., 62 NY2d 956, 959 [1984], revg for reasons stated in dissenting op of Kassal, J., 98 AD2d 58, 67-73 [1983]) or imposes a penalty so excessive that it shocks one’s sense of fairness (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]). None of those factors is present here.

The law school’s treatment of Powers was rational insofar as it was not wholly inconsistent with the school’s approach to rescission of admission in general. The law school states that while it routinely receives, and often grants, requests from enrolled students to amend the criminal history sections of their applications, such amendments usually involve minor offenses such as open container or traffic violations, or small quantity marijuana possession. Amendments are by no means guaranteed — the law school states that on at least two occasions, when the information contained in the subsequent disclosure would have prevented the individual from being considered for admission, the students’ admission was rescinded.

The law school avers that it has an unwritten policy of not admitting people who sell drugs and that if Powers had disclosed on his application that his arrest was for the distribution of LSD to an undercover officer and possession with intent to distribute, his application would have been denied during the initial screening process. The school explains that it generally distinguishes between applicants with a history of personal drug use, and those with a history of drug dealing— the former can be accepted under certain circumstances, but the latter are not. That is not an irrational policy and certainly within the exercise of the law school’s honest discretion. While Powers questions whether there is such a policy because it is not memorialized in writing, it is not necessary that the policy be in writing for the school to apply the policy. It would be untenable for courts to require that every factor that is taken into consideration during the admission process be reduced to writing. Further, the law school’s response to Powers’s belated disclosure was not arbitrary or capricious, given that Powers was on notice, based on the electronic certification that he submitted with his application, that the failure to provide truthful answers to the questions could result in denial of admission, dismissal, or rescission of an awarded degree from the school.

Additionally, the law school did not fail to follow its own rules and procedures. Powers was not, as he contends, entitled to the grievance procedure set forth in the student handbook. The handbook states that it “is concerned specifically with the conduct of students with respect to academic and related matters.” The handbook has sections that deal with schoolwork, attendance, and examinations. Thus, it is clear that the grievance procedure does not apply to conduct of students that is unrelated to academic and related matters, or unrelated to conduct of students when they are enrolled (i.e., conduct connected to the application process) (see Matter of Mitchell v New York Med. Coll., 208 AD2d 929, 930 [2d Dept 1994] [medical student not entitled to a formal hearing pursuant to a student handbook before being dismissed for a misrepresentation he made in the admission process because the section of the handbook upon which he relied was clearly aimed at misconduct committed by an individual while a student at the school, not fraudulent acts committed prior to admission]). Notably, while the law school did not apply the formal grievance procedure, it did give Powers a chance to amend his application and explain the misrepresentations and omissions in writing, in addition to affording him an opportunity to meet with school administrators to explain his actions.

Finally, the penalty was not so “disproportionate to the misconduct” (Pell, 34 NY2d at 234) as to be shocking to one’s sense of fairness. The law school application made it clear that dire consequences could result if there was a failure to provide truthful answers. Thus, Powers was on notice of the potential repercussions should he fail to truthfully and fully disclose his record. Given this notice and the school’s unquestionable interest in ensuring the integrity of the future attorneys under its tutelage, the penalty of rescission was not excessive.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question should not be answered as unnecessary.

Pigott, J.

(dissenting). David Powers has accomplished a significant amount since his (now expunged) conviction. After successfully completing an in-house drug treatment program, he graduated summa cum laude with a Bachelor of Science degree in accounting and obtained a Master of Science degree in taxation. He is currently a certified public accountant at a well-recognized accounting firm, which hired Powers notwithstanding his prior conviction. St. John’s University School of Law is apparently not as forgiving.

I respectfully dissent because, in my view, St. John’s failed to demonstrate with admissible proof that, had it known in 2005 that Powers had been convicted of a “distribution” offense as opposed to a personal use offense (which is what Powers led the school to infer on his application), it would have denied his admission. The only indication that this was St. John’s “policy” back in 2005 was a hearsay statement contained in the only affidavit submitted by a St. John’s representative, Assistant Dean for Students, Larry Cunningham, who was apprised of that “policy” by one Robert Harrison, Assistant Dean for Admissions and Student Financial Services. Although Dean Harrison may have conveyed to Dean Cunningham that had St. John’s known that Powers had been convicted of a distribution offense it would have rejected Powers’s application “out of hand and would not have been submitted to the Committee on Admissions for review and consideration,” there is no affidavit from a St. John’s representative who had personal knowledge that that was, in fact, St. John’s policy when Powers applied in 2005. Whether that was, in fact, St. John’s policy is crucial to the determination of this proceeding.

I also disagree with the imposition of this particular penalty — rescission of Powers’s three semesters worth of credit. Ironically, the only reason the nature of Powers’s conviction was disclosed was because Powers requested a letter from St. John’s in support of his application for an advanced ruling from the Appellate Division concerning whether he would be admitted to the New York bar in light of his prior conviction, thereby demonstrating his clear goal of becoming an attorney. Given that Powers had obtained three semesters worth of credit and presumably paid tuition to attend, rescission of Powers’s application is, in my view, too harsh a penalty for the alleged infraction.

Chief Judge Lippman and Judges Read, Stein and Fahey concur; Judge Pigott dissents in an opinion; Judge Rivera taking no part.

Order affirmed, with costs, and certified question not answered as unnecessary.

       The records of Powers’s arrest and convictions were expunged by order of the Superior Court of New Jersey, Morris County, dated October 27, 2005.