author: Ciparick, J.

text:
    [942 NE2d 291, 917 NYS2d 82]
    In the Matter of the Arbitration between Barbara Kowaleski, Appellant, and New York State Department of Correctional Services, Respondent.
    Argued November 16, 2010;
    decided December 21, 2010

      POINTS OF COUNSEL

      Oliver Law Office, Albany (Lewis B. Oliver, Jr., of counsel), for appellant.
    I. The arbitrator exceeded his power and ignored the strong public policy contained in Civil Service Law § 75-b to protect public employees from retaliation for disclosing improper governmental action to the Department of Correctional Services. (Matter of Sprinzen [Nomberg], 46 NY2d 623; Matter of Obot [New York State Dept. of Correctional Servs.], 89 NY2d 883; Rosenblum v Steiner, 43 NY2d 896; Durst v Abrash, 22 AD2d 39, 17 NY2d 445; Garrity v Lyle Stuart, Inc., 40 NY2d 354; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321; Hanley v New York State Exec. Dept., Div. for Youth, 182 AD2d 317.) II. The award should be vacated on the grounds that the arbitrator exceeded his power pursuant to CPLR 7511 (b) (1) (iii) because the arbitrator ignored a specific limitation on his authority contained in Civil Service Law § 75-b to protect public employees from retaliation. (Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321; Matter of Town of Callicoon [Civil Serv. Empls. Assn., Town of Callicoon Unit], 70 NY2d 907; Matter of Obot [New York State Dept. of Correctional Servs.], 224 AD2d 1006;
      Matter of Crossman-Battisti v Traficanti, 235 AD2d 566; Shaw v Baldowski, 192 Misc 2d 635; Matter of Plante v Buono, 172 AD2d 81.) III. The award with respect to charges one and three should be vacated pursuant to CPLR 7511 (b) (1) (iii) on the grounds that the arbitrator’s determination that Officer Kowaleski’s statement jeopardized the security of another officer and/or his family and the determination that she was insubordinate to a sergeant are totally irrational, there is no proof whatsoever to justify the finding, the finding is not supported by evidence or other basis in reason on the records, and it is arbitrary and capricious. (Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321; Matter of Town of Callicoon [Civil Serv. Empls. Assn., Town of Callicoon Unit], 70 NY2d 907; Matter of NFB Inv. Servs. Corp. v Fitzgerald, 49 AD3d 747; Matter of Murray v Murphy, 24 NY2d 150; Matter of Regional Tr. Serv. [Amalgamated Tr. Union, Local 282], 267 AD2d 941; Matter of Gang v Guido, 185 AD2d 272; Matter of Griffin v Thompson, 202 NY 104; Herod v Board of Educ. of Hempstead Pub. School Dist., 90 AD2d 841.)

      Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh, Barbara D. Underwood and Andrew D. Bing of counsel), for respondent.
    I. The arbitral award upholding petitioner’s discharge does not violate strong and well-defined public policy. (Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y, 1 NY3d 72; Matter of Sprinzen [Nomberg], 46 NY2d 623; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1; Matter of New York City Tr. Auth. v Transport Workers Union of Am., AFL-CIO, Local 100, 220 AD2d 749; Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332; Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 548 US 940.) II. There is no other basis to vacate the arbitral award. (Matter of Obot [New York State Dept. of Correctional Servs.], 89 NY2d 883; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321; Matter of Crossman-Battisti v Traficanti, 235 AD2d 566; Matter of Colao v Village of Ellenville, 223 AD2d 792, 87 NY2d 1041; Matter of Brey v Board of Educ. of Jeffersonville-Youngsville Cent. School Dist., 245 AD2d 613; Matter of Plante v Buono, 172 AD2d 81, 79 NY2d 756; Caso v Coffey, 41 NY2d 153; Matter of NFB Inv.

      Servs. Corp. v Fitzgerald, 49 AD3d 747; Matter of Peckerman v D & D Assoc., 165 AD2d 289; Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 548 US 940.)
    Amanda J. Velazquez, Albany, and Nancy E. Hoffman for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, amicus curiae.
    I. The arbitrator’s award should be vacated because it violated public policy by denying Ms. Kowaleski statutory protections against retaliation for whistleblower activity. (Matter of Sprinzen [Nomberg], 46 NY2d 623; Sabetay v Sterling Drug, 69 NY2d 329; Hanley v New York State Exec. Dept., Div. for Youth, 182 AD2d 317; Obot v New York State Dept. of Correctional Servs., 256 AD2d 1089; Matter of Professional Staff Congress-City Univ. of N.Y. v New York State Pub. Empl. Relations Bd., 7 NY3d 458; Matter of Civil Serv. Empls. Assn. v Newman, 88 AD2d 685.) II. The arbitrator’s award should be vacated because the arbitrator exceeded his power which was expressly limited by the statutory requirement to consider and determine the merits of Ms. Kowaleski’s whistlebower defense. (Matter of Silverman [Benmor Coats], 61 NY2d 299.) III. The award should be vacated because the arbitrator failed to determine whether the charges against Ms. Kowaleski were initiated and pursued in retaliation for whistleblower activity. (Matter of Obot [New York State Dept. of Correctional Servs.], 89 NY2d 883; Treglia v Town of Manlius, 313 F3d 713; Matter of Crossman-Battisti v Traficanti, 235 AD2d 566.)
   OPINION OF THE COURT

Ciparick, J.

Petitioner Barbara Kowaleski began her employment with the State Department of Correctional Services (DOCS) as a correction officer in 1981, and was assigned to the Hale Creek Correctional Facility (Hale Creek) in 1995. In October 2004, she was served with a notice of discipline (Notice) charging her with violating provisions of the employees’ manual on three separate occasions in September and October 2004: (1) in September 2004, she allegedly “made inappropriate comments of a personal nature about another staff member in the presence of staff and inmates”; (2) in October 2004, she allegedly argued with a fellow employee; and (3) also in October 2004, she allegedly was “disrespectful and insubordinate” when she ignored a superior’s order to stop interrupting another employee. The Notice called for her termination and the loss of any accrued leave. Kowaleski filed a grievance and, pursuant to a collective bargaining agreement (CBA), a hearing was held before an arbitrator.

At the start of the hearing, Kowaleski argued that the disciplinary action was only being brought to retaliate against her for reporting a fellow officer’s misconduct in 2002, and that she was entitled to raise this as an affirmative defense pursuant to Civil Service Law § 75-b, which prohibits public employers from retaliating against employees for reporting their coworkers’ improper conduct. The arbitrator determined that because the CBA limited his authority “to determinations of guilt or innocence and the appropriateness of proposed penalties,” he lacked authority to consider Kowaleski’s retaliation defense. He noted, however, that he would consider evidence of retaliation when determining witness credibility and “in the larger context of guilt or innocence.”

In January 2007, the arbitrator found Kowaleski guilty of two of the three charges and determined that termination was appropriate. He found that Kowaleski had, in the presence of inmates, asked if a fellow officer’s son had been shot, potentially endangering the officer and his family, and that she had insubordinately ignored a superior’s instructions. The arbitrator noted that, under the CBA, an employee can only be disciplined for “just cause,” which requires, among other things, that the employer made a “fair and objective investigation,” that “the employer’s action was non-discriminatory,” and that “the penalty is reasonably related to the seriousness of the offense.” After finding Kowaleski guilty, the arbitrator concluded that there was “just cause” for the penalty of discharge, which was not “arbitrary, capricious, unreasonable, or excessive.”

Kowaleski filed this CPLR 7511 petition seeking a declaration (1) vacating the arbitrator’s opinion and award, and (2) directing that the charges in the Notice be dismissed or remanded for a new hearing before a different arbitrator. DOCS moved to dismiss the petition. Supreme Court found that the arbitrator exceeded his power by ignoring Civil Service Law § 75-b, but concluded that because this was an error of law, the award should not be vacated. The court further reasoned that section 75-b only precludes disciplinary action “taken solely in retaliation,” and here witness testimony provided a “separate and independent” basis for the action. Supreme Court found that the arbitrator’s findings and award were rational.

The Appellate Division affirmed, with two Justices dissenting. The majority found that although the arbitrator “incorrectly stated that it was beyond his jurisdiction to consider petitioner’s claim of retaliation, this error of law does not warrant vacating the award under the circumstances,” given the arbitrator’s rational and supported finding that Kowaleski was guilty of two of the charges (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 61 AD3d 1081, 1083 [3d Dept 2009]). Moreover, the majority reasoned, the arbitrator did consider “evidence of retaliation in weighing witness credibility and assessing petitioner’s guilt” (id.). Two Justices dissented on the grounds that Kowaleski was “deprived of her right to have the arbitrator determine . . . the specific factual issue of whether the disciplinary charges were, in the first instance, initiated and pursued to retaliate for the prior matters” (id. at 1085 [brackets and internal quotation marks omitted]). Kowaleski appealed as a matter of right pursuant to CPLR 5601 (a). We agree with the dissenting Justices and now reverse.

Under CPLR 7511 (b) an arbitration award must be vacated if, as relevant here, a party’s rights were impaired by an arbitrator who “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made” (CPLR 7511 [b] [1] [iii]). It is well-settled that an arbitrator “exceed[s] his power” under the meaning of the statute where his “award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]; see also Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530 [2010]). Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where “an arbitrator has made an error of law or fact” (Falzone, 15 NY3d at 534).

Here, the arbitrator clearly exceeded a “specifically enumerated limitation” on his power. As the courts below found, and DOCS concedes, the arbitrator not only had authority to consider Kowaleski’s retaliation defense, but was required to do so. Civil Service Law § 75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting “improper governmental action” (Civil Service Law § 75-b [2] [a]). If “the employee reasonably believes dismissal or other disciplinary action would not have been taken but for” the whistleblowing, the employee “may assert such as a defense before the designated arbitrator or hearing officer” (Civil Service Law § 75-b [3] [a]). Whatever the terms of the CBA, “[t]he merits of such defense shall he considered and determined as part of the arbitration award or hearing officer decision” (id. [emphasis added]). In short, the statute requires the arbitrator to consider and determine the merits of an employee’s retaliation defense where such a defense is raised (cf. Matter of Obot [New York State Dept. of Correctional Servs.], 89 NY2d 883, 885-886 [1996] [award not vacated where an employee failed to raise the retaliation defense in the arbitration and the arbitrator did not consider it]). If the arbitrator or hearing officer finds that “the dismissal or other disciplinary action is based solely” on the employer’s desire to retaliate, the disciplinary proceeding must be dismissed (Civil Service Law § 75-b [3] [a]). Therefore, the arbitrator’s finding here that he did not have authority under the CBA to consider Kowaleski’s retaliation defense was not only incorrect as a matter of law, but also in excess of an explicit limitation on his power. Because he failed to consider and determine the defense, the award must be vacated.

Contrary to DOCS’ position, it was not enough for the arbitrator to hear evidence of retaliation in the context of making determinations as to witness credibility and deciding Kowaleski’s guilt. A disciplinary action may be retaliatory even where an employee is guilty of the alleged infraction. Under Civil Service Law § 75-b (3), an arbitrator is required to dismiss a disciplinary action based solely on retaliatory motive, regardless of the employee’s guilt or innocence (see Civil Service Law § 75-b [2] [a]; [3] [a]). This separate retaliation inquiry is critical. In order to be effective, whistleblower protections like those embodied in Civil Service Law § 75-b must shield employees from being retaliated against by an employer’s selective application of theoretically neutral rules. Thus, a separate determination regarding the employer’s motivation in bringing the action is necessary if section 75-b is to truly “establish[ ] a major right for employees—the right to speak out against dangerous or harmful employer practices” (Governor’s Approval Mem, Bill Jacket, L 1984, ch 660, at 5).

Because we find that the arbitrator’s failure to separately consider and determine Kowaleski’s affirmative defense of retaliation on the merits requires the award to be vacated, we decline to reach Kowaleski’s other arguments. We note, however, that she has requested that any rehearing be before a different arbitrator. That request should be ruled on by Supreme Court in the exercise of its discretion.

Therefore, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, petitioner’s application to vacate the arbitration award granted, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

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

Order, insofar as appealed from, reversed, etc.

      . In 2003, Kowaleski had received two notices of discipline, both with dismissal from service as the proposed penalty. In the resulting arbitration, she testified that she had reported a fellow correction officer’s misconduct in 2002, and was frequently harassed at work. While noting that it was “not within [his] authority to make a determination of whether harassment occurred,” the arbitrator observed that Kowaleski was “the object of animosity and/or harassment” by some of her fellow officers, and that the harassment “may have originated when CO Kowaleski informed her supervisor of the [2002] incident.” He found her guilty of some of the disciplinary charges and imposed a 60-day suspension.

      . Kowaleski testified that, in 2002, she observed a fellow officer use excessive force on an inmate, and she refused to sign a report that she had witnessed the inmate assault the officer. The sergeant who was supposed to be supervising when the incident occurred told Kowaleski to “[k]eep [her] mouth shut or else [she] would be escorted off the premises.” A group of her coworkers began harassing her, and the harassment escalated after she reported the incident to the administration. A retired correction sergeant who had last worked at Hale Creek in 2005 testified that Kowaleski “couldn’t make a move without getting blamed for something.”


source: Caselaw Access Project

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

license: Public Domain

text:
    [942 NE2d 283, 917 NYS2d 74]
    The People of the State of New York, Respondent, v William Porto, Appellant. The People of the State of New York, Respondent, v Rodriguece Garcia, Also Known as Carlos Rodriguez, Appellant.
    Argued November 16, 2010;
    decided December 21, 2010

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Carl S. Kaplan and Robert S. Dean of counsel), for appellant in the first above-entitled action.
    I. Appellant was deprived of his constitutional right to counsel when the trial court summarily denied his request for reassignment of counsel without conducting any inquiry regarding the grounds for appellant’s application, or giving appellant an opportunity to elaborate upon his standard-form pro se motion papers for the same relief, or giving him an opportunity to elaborate upon counsel’s brief statement, which referred to appellant’s “frustration].” (People v Sides, 75 NY2d 822; Pointer v Texas, 380 US 400; Gideon v Wainwright, 372 US 335; People v Linares, 2 NY3d 507; People v Medina, 44 NY2d 199; Powell v Alabama, 287 US 45; People v Cunningham, 49 NY2d 203; People v Davis, 75 NY2d 517; People v Arroyave, 49 NY2d 264; People v Sawyer, 57 NY2d 12.) II. Appellant’s adjudication and sentence pursuant to New York’s persistent violent felony offender statutes are unconstitutional under the principles announced in Apprendi v New Jersey (530 US 466 [2000]). (Almendarez-Torres v United States, 523 US 224; People v Rivera, 5 NY3d 61; Shepard v United States, 544 US 13; People v Rosen, 96 NY2d 329; People v Leon, 10 NY3d 122; Blakely v Washington, 542 US 296; Cunningham v California, 549 US 270; People v Samms, 95 NY2d 52; People v Patterson, 39 NY2d 288; People v Crimmins, 36 NY2d 230.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Sara M. Zausmer and Karen Schlossberg of counsel), for respondent in the first above-entitled action.
    I. The trial court’s denial of defendant’s eve-of-trial motion to replace his attorney was proper. (People v Sides, 75 NY2d 822; People v Sawyer, 57 NY2d 12, 459 US 1178; People v Medina, 44 NY2d 199; People v Smith, 192 AD2d 310, 82 NY2d 731; People v Linares, 2 NY3d 507; People v Arroyave, 49 NY2d 264; People v Tineo, 64 NY2d 531; People v Beriguette, 84 NY2d 978; People v Stevenson, 36 AD3d 634, 8 NY3d 927; People v Moore, 41 AD3d 1149.) II. Defendant’s claim that his adjudication as a persistent violent felony offender violated his right to a jury trial under Apprendi v New Jersey (530 US 466 [2000]) is unpreserved and meritless. (People v Leon, 10 NY3d 122; People v Thomas, 50 NY2d 467; People v Patterson, 39 NY2d 288, 432 US 197; People v Rosen, 96 NY2d 329, 534 US 899; People v Besser, 96 NY2d 136; People v Rivera, 9 NY3d 904; People v Oliver, 63 NY2d 973; People v Kelly, 5 NY3d 116; People v Arthur, 22 NY2d 325; People v Callahan, 80 NY2d 273; People v McLucas, 15 NY2d 167.)

      Office of the Appellate Defender, New York City (Matthew L. Mazur, Richard M. Greenberg and Eunice C. Lee of counsel), for appellant in the second above-entitled action.
    In the absence of inquiry sufficient to establish that there was no actual conflict of interest, the Supreme Court’s denial of defense counsel’s motion for substitution of counsel deprived Carlos Rodriguez of his right to conflict-free counsel at the sentencing hearing. (People v Ortiz, 76 NY2d 652; People v Sides, 75 NY2d 822; People v Medina, 44 NY2d 199; People v Rozzell, 20 NY2d 712; United States v Davis, 239 F3d 283; Holloway v Arkansas, 435 US 475; People v Linares, 2 NY3d 507; Lopez v Scully, 58 F3d 38; People v Williams, 35 AD3d 1085; People v Ulloa, 300 AD2d 60.)

      Robert T. Johnson, District Attorney, Bronx (Cynthia A. Carlson, Joseph N. Ferdenzi and Nancy Killian of counsel), for respondent in the second above-entitled action.
    The denial of defense counsel’s eleventh-hour request for substitution was a proper exercise of the court’s discretion. (People v Sides, 75 NY2d 822; People v Sawyer, 57 NY2d 12; People v Medina, 44 NY2d 199; People v Cross, 262 AD2d 223, 94 NY2d 902; People v Linares, 2 NY3d 507; People v Arroyave, 49 NY2d 264; People v Carncross, 14 NY3d 319; People v Tineo, 64 NY2d 531; People v Senghor, 248 AD2d 299, 92 NY2d 905; People v Burgos, 298 AD2d 190, 99 NY2d 580.)
   OPINION OF THE COURT

Jones, J.

The common issue presented in these appeals is whether defendants’ motions to substitute counsel were properly denied in light of the “minimal inquiry” standard of People v Sides (75 NY2d 822 [1990]). Finding no reversible error, we affirm both convictions.

People v Porto

On July 24, 2006, complainant Sai Hung Chui returned to his apartment to find that he had been the victim of a burglary. The police recovered a fingerprint from a metal cookie tin that had been displaced during the crime and determined that it belonged to defendant William Porto. Subsequently, defendant was arrested on September 27, 2006 and charged with second- and third-degree burglary.

On June 12, 2007, the first morning of jury selection, the trial court was informed that defendant had submitted a form, pro se motion seeking reassignment of counsel. The form motion contained three preprinted grounds for the motion, and a final, blank paragraph for the movant to further address the grounds of his application. Defendant circled the three grounds for the motion, but did not provide any information within the blank space to elaborate upon his motion for new counsel.

The court engaged in a colloquy with defense counsel, ascertaining whether he could effectively represent defendant. Defense counsel responded that he had been an attorney for the Legal Aid Society since 1989, had conducted 30 to 40 felony trials, and was not aware of any reason that would prevent him from providing defendant with effective representation. Counsel also stated that he was not seeking to be replaced and further explained his belief that defendant’s motion was based on “frustration” regarding how fingerprint evidence had been addressed. Defense counsel advised the court that he intended to move to preclude such evidence in order to remedy any of defendant’s concerns. The trial court denied the motion for substitution of counsel, concluding that defense counsel was capable of providing effective assistance and that the matter was ready for trial.

Defendant’s motion to preclude fingerprint evidence was denied. A jury convicted him of burglary in the second degree and he received an enhanced sentence, as a persistent violent felony offender, of 16 years to life.

The Appellate Division unanimously affirmed the conviction, concluding that defendant’s day-of-trial motion lacked specific allegations of a serious complaint to obligate the trial court to inquire about the basis of the application (66 AD3d 430 [1st Dept 2009]). Although there was no basis requiring the trial court to engage in an inquiry, its colloquy with defense counsel did not uncover any specific ground for substitution of new counsel. A Judge of this Court granted leave to appeal (14 NY3d 772 [2010]), and we now affirm.

People v Garcia, also known as Rodriguez

On August 23, 2006, complainant Wilson Crispin, a truck driver, discovered defendant Rodriguece Garcia inside the cab of his truck. Defendant displayed a knife, instructed complainant to not call the police, and fled. Complainant observed that the passenger window had been broken and that a CB radio and his identification card were missing. Defendant was later arrested, found carrying complainant’s identification card.

On May 6, 2008, defendant accepted an offer to plead guilty to attempted robbery in the first degree in exchange for a sentence of seven years in prison with five years of postrelease supervision. Defendant assured the court that he had not been influenced in any way to accept the plea offer. As a condition of the plea agreement, defendant was required to speak with a New York City Department of Probation officer regarding the facts of the incident to help in the preparation of a presentence report. He acknowledged this obligation after being unequivocally warned by the court that failure to do so could result in the imposition of an enhanced sentence.

At the subsequent sentencing hearing, on May 28, 2008, the probation officer advised the court that defendant declined to speak about the facts, and instead informed the officer that he was considering withdrawing his plea. When the court inquired as to whether defendant wished to withdraw his guilty plea, defense counsel responded that defendant declined to do so. The court adjourned the hearing to provide defendant another opportunity to speak with probation.

At the final sentencing hearing on June 24, 2008, the probation officer apprised the court that defendant again declined to discuss the facts of the case, and consequently, failed to comply with the condition of the plea offer. When the court pronounced that it would enhance defendant’s sentence for his violation of the court’s prior directive, defendant moved to withdraw his plea and to substitute counsel. Defense counsel then indicated to the court that she was uncomfortable speaking on the matter because it appeared that defendant took issue with her performance as counsel, and she felt constrained by ethical considerations from fully explaining the issue to the court. However, defense counsel did proffer a general complaint that defendant believed he was coerced by counsel into accepting the plea offer. The court found this motion to be based on “a vague, unspecified claim,” and appeared dubious of the application, referring to the prior hearings where defendant made assurances that he was pleading guilty and would comply with conditions of the plea offer.

The court also spoke directly with defendant, who alleged that he “was forced to take this plea[ ] bargain and . . . made a decision and plead[ed] guilty . . . without making the decision.” The court similarly questioned defendant about the prior hearings where he had responded that his plea was voluntary and that nothing affected his competency in accepting the plea offer. The court also referred to the probation officer’s presentence reports where defendant reported that he was pleading guilty on advice of counsel and did not intend to withdraw the plea. The court denied the motion to substitute counsel and sentenced defendant to a term of seven years and six months, with five years of postrelease supervision.

The Appellate Division affirmed defendant’s conviction and found that the sentencing court engaged in a lengthy colloquy where defendant and his counsel were only able to proffer generalities as a basis of the motion to substitute counsel (71 AD3d 555 [1st Dept 2010]). The court rejected defendant’s contention that the alleged conflict of interest prevented further explanation of the complaint, concluding that his attorney could have revealed the allegations without admitting them. A Judge of this Court granted leave to appeal (15 NY3d 750 [2010]), and we now affirm.

“Minimal Inquiry” Standard

It is well settled that an indigent defendant is guaranteed the right to counsel by both the Federal and New York State Constitutions (see US Const 6th Amend; NY Const, art I, § 6), but this entitlement does not encompass the right to counsel of one’s own choosing (see People v Sawyer, 57 NY2d 12, 18-19 [1982]). While a court has a duty to investigate complaints concerning counsel, “this is far from suggesting that an indigent’s request that a court assign new counsel is to be granted casually” (id. at 19).

Whether counsel is substituted is within the “discretion and responsibility” of the trial judge (People v Medina, 44 NY2d 199, 207 [1978]), and a court’s duty to consider such a motion is invoked only where a defendant makes a “seemingly serious request[ ]” (Sides, 75 NY2d at 824). Therefore, it is incumbent upon a defendant to make specific factual allegations of “serious complaints about counsel” (Medina, 44 NY2d at 207). If such a showing is made, the court must make at least a “minimal inquiry,” and discern meritorious complaints from disingenuous applications by inquiring as to “the nature of the disagreement or its potential for resolution” (Sides, 75 NY2d at 825).

Upon such a review, counsel may be substituted only where “good cause” is shown. This Court has enumerated several factors that should be weighed by a court in reviewing a motion for new counsel. “In determining whether good cause exists, a trial court must consider the timing of the defendant’s request, its effect on the progress of the case and whether present counsel will likely provide the defendant with meaningful assistance” (People v Linares, 2 NY3d 507, 510 [2004]). We have previously recognized two instances of good cause mandating substitution of counsel: “first, when an attorney is assigned to represent two defendants between whom there is a conflict of interest and second, when the defense counsel has ‘not adequately investigated his client’s history of mental disorder’ ” (Linares, 2 NY3d at 511). Here, neither appeal presents these two situations, nor other factors meriting substitution of counsel.

In Porto, defendant contends that the trial court failed to make a sufficient inquiry because it engaged in a colloquy solely with defense counsel without directing any questions towards defendant, and affording him a basis to explain his petition. We find defendant’s argument unavailing.

While defendant seeks a rule of law requiring a court to pose questions directly to every complaining defendant, “practical constraints on the administration of a program for providing legal assistance dictate that ‘as long as assigned counsel are men [and women] of ability and integrity, the discretion and responsibility for their selection rest with the court’ ” (Medina, 44 NY2d at 207, quoting People v Brabson, 9 NY2d 173, 181 [1961]). Here, there is no evidence in the record indicating an abuse of discretion by the court in denying the motion for substitution of counsel where defendant failed to proffer specific allegations of a “seemingly serious request” that would require the court to engage in a minimal inquiry. Defendant’s form motion did not contain any specific factual allegations that would indicate a serious conflict with counsel, despite being provided the space to develop such a complaint (see People v Thompson, 32 AD3d 743 [1st Dept 2006] [“summary denial of defendant’s conclusory application for new counsel was proper, since defendant failed to make any serious complaint requiring further inquiry”]; People v Stevenson, 36 AD3d 634, 635 [2d Dept 2007] [“Further inquiry was not required because (defendant’s) conclusory assertions did not suggest the serious possibility of a genuine conflict of interest”]). Further, the trial court did engage in a colloquy with defense counsel and properly exercised its discretion by considering the timing of the motion—the morning of jury selection—and expressing its confidence in the abilities of defense counsel, who had conducted 30 to 40 felony trials. A vague, conclusory allegation of “frustration” was not sufficiently specific to require a minimal inquiry by the court, and certainly did not warrant a grant of his motion (see Medina, 44 NY2d at 208 [“tensions between client and counsel on the eve of trial” is not good cause]).

While defendant urges that this is a more compelling case than Sides, such an argument is not supported by the record. In Sides, the defendant’s motion for new counsel was acknowledged by the defense counsel who confirmed an apparent rift in the attorney-client relationship. This Court held that where potential conflict is acknowledged by counsel’s admission of a breakdown in trust and communication, the trial court is obligated to make a minimal inquiry, but here, no facts exist to mandate such a review. A blank form motion and defense counsel’s explanation of defendant’s “frustration” are not specific allegations obligating the trial court to conduct a minimal inquiry in light of the timing of the request on the morning of jury selection and counsel’s assurance of effective representation based on his felony trial experience. Rather, here, as in People v Beriguette (84 NY2d 978, 980 [1994]), “[w]e reject defendant’s contention that [the court] was obligated to inquire further, after reviewing his motion for reassignment of counsel, into the factual bases for his pro se submission, as defendant failed to show good cause for substitution.” As such, we find no basis to reverse the Appellate Division and overturn defendant’s conviction.

In Garcia, the record is clear that throughout the series of court hearings, defendant never indicated any dissatisfaction with counsel until the morning of sentencing (see Medina, 44 NY2d at 205 [no dissatisfaction with counsel until the morning of trial]; Linares, 2 NY3d at 511-512 [defendant had no discontent with counsel until the eve of trial]). It was not until the final hearing, where the court indicated that it would enhance defendant’s sentence for failure to comply with plea offer conditions, that defendant sought new counsel. Here, the court engaged in sufficient minimal inquiry by directing questions to both defendant and defense counsel, but counsel consistently evaded expounding upon the motion. However, she did acknowledge that defendant had professed a belief that he was coerced by counsel into accepting the guilty plea, and defendant offered a similarly general allegation. The court also properly considered the progress of the case, referring to prior assurances by defendant that he would plead guilty and comply with conditions of the plea offer. It can also be inferred from the record that the motion for new counsel was a possible delay tactic in light of the timing of the request after defendant’s persistent refusal to comply with the court’s directive. Therefore, it was not an abuse of discretion by the court to conclude that defendant’s vague claims were unavailing and to deny the motion, particularly where a lengthy inquiry could not find further facts to support the allegation (Linares, 2 NY3d at 511 [“The court . . . reasonably concluded that defendant’s vague and generic objections had no merit or substance”]).

Defendant Porto’s additional argument, raising an Apprendi challenge to New York’s mandatory persistent violent felony offender statutes, is also meritless.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

Pigott, J. (dissenting).

I respectfully dissent. In my view, the trial court’s failure to ask defendant William Porto about his motion for assignment of new counsel before denying it was reversible error.

I don’t disagree with the majority’s statement of basic principles, i.e., that the right to counsel is guaranteed by both the Federal and State Constitutions. However, the trial court’s responsibility to protect a defendant’s right to counsel does not end with the assignment of a lawyer (People v Linares, 2 NY3d 507, 510 [2004]). Because assigned counsel must be effective, we have repeatedly held that “trial courts must carefully evaluate serious complaints about counsel” (id., quoting People v Medina, 44 NY2d 199, 207 [1978] [internal quotation marks omitted]), and “should substitute counsel when a defendant can demonstrate ‘good cause’ ” for substitution (Linares, 2 NY3d at 510).

Where defendant’s request for new assigned counsel on its face suggests “a serious possibility” of good cause for substitution, the trial court must inquire into the nature of the problem and whether it may be resolved (People v Sides, 75 NY2d 822, 824-825 [1990]). Indeed, although we used the term “minimal inquiry” in People v Sides (75 NY2d at 825), implying that a lengthy or extensive inquiry is not necessarily required, we evaluate such an inquiry by considering whether or not it was “diligent and thorough” (Linares, 2 NY3d at 511).

Whether the trial court is always obliged to make inquiries of defendant himself is less clear; and this, in my view, is where the experience of the court is most important and where record support for the court’s ruling must be found. What is certain is that a defendant must be given the opportunity to demonstrate whether he has good cause for new assigned counsel, and it seems to me that—at least when the defense counsel whom defendant wants replaced does not state in any detail defendant’s reasons for seeking new counsel—a “diligent and thorough” evaluation of defendant’s complaint would necessarily require making an inquiry of defendant himself. One way or the other, “the defendant must at least be given an opportunity to state the basis for his application” (People v Bryan, 31 AD3d 295, 296 [1st Dept 2006]).

Here, defendant’s written pro se motion on its own suggests a “serious possibility” that he was in irreconcilable conflict with a lawyer who, according to defendant, would not visit him or keep him apprised of motion practice—until the eve of trial. And certainly defense counsel’s casual assertions about defendant’s frustration tend to support the conclusion of a breakdown of trust. Significantly, these remarks do not explain away defendant’s complaint, or give the trial court a basis on which to make a careful evaluation of whether trusting communication between attorney and client had been irretrievably broken. Defendant’s motion, in conjunction with assigned counsel’s comments, warranted such an inquiry.

The People argue that the trial court was able, on the basis of counsel’s remarks, to ascertain that the disagreement between defendant and his lawyer concerned the mishandling of the cookie tin issue and would be resolved by a motion to preclude the cookie tin evidence. It is far from clear that the cookie tin issue was defendant’s only concern about counsel’s representation, and I don’t see how even that disagreement could reasonably be thought to have been resolved by defense counsel’s (unsuccessful) eve-of-trial oral motion to preclude.

The majority rests its decision primarily on the failure of defendant to make “specific factual allegations that would indicate a serious conflict with counsel, despite being provided the space to develop such a complaint” (majority op at 100-101). In fact, defendant made three factual allegations in his pro se application and, if they lack specificity, it is only because they are negative in character, as one would expect from a complaint that a lawyer has failed to communicate.

Like the Appellate Division, the majority of this Court makes much of the fact that defendant’s motion was a mere “form” motion (see majority op at 96, 100-101, 101). Leaving aside the fact that most motions are a form of one nature or another, the majority’s conclusion seems to be that this type of pro se motion is to be frowned upon. To the contrary, I find the fact that a defendant went to the trouble to find such a form, fill it out and submit it to the court to be a strong indication of the seriousness of defendant’s claim. Many, if not most, such motions are either made verbally at the time of appearance in court or through counsel—not, as here, in written form. Rather than being criticized, this practice should be encouraged and taken seriously.

I also believe that the majority unfairly highlights the “timing of the request on the morning of jury selection” (majority op at 101), when defendant’s motion was apparently completed and signed 10 days earlier, defendant told the trial court that he had sent the application to the court, and the thrust of the application is that defense counsel failed to communicate effectively with defendant. Defense counsel’s motion to preclude the fingerprint evidence, let it be noted, was oral and also made on the day of trial.

Defendant’s motion and defense counsel’s remarks taken together suggest a serious possibility of irreconcilable conflict between defendant and counsel. Whether defendant actually had good cause for assignment of new counsel is a different matter, which should be carefully separated from whether defendant’s request suggested a serious possibility that he had good cause.

Finally, I note that harmless error analysis is not applicable (People v Arroyave, 49 NY2d 264, 273 [1980] [“(W)e reject the People’s contention that defendant is entitled to a new trial only if he can demonstrate that he was prejudiced by the court’s denial of the request for substitution of retained counsel and an adjournment to prepare for trial. The constitutional guarantee to be represented by counsel of one’s own choosing is a fundamental right, and the doctrine of harmless error is inapplicable upon a showing that such right has been abridged”]).

In my view, reversal is mandated in light of our clear direction in Sides and Linares. A defendant is entitled to a new trial where the trial court asked him no questions concerning a serious pro se motion seeking substitution of counsel, but instead limited its inquiry to a cursory questioning of the very counsel with whom the defendant is alleging a conflict: in essence hearing only one side of the story.

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

In People v Porto: Order affirmed.

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

In People v Garcia: Order affirmed.

      . The preprinted form read:
      “[Defense counsel failed to:]
      “(a) visit defendant at his place of confinement or have him produced to the Court for a consultation;
      “(b) provide copies and inform defendant of any Motions filed, Responses and Court’s decisions thereto;
      “(c) forward me copies of any bill of particulars and or discovery in his/her possession.”

      . On May 29, 2007—approximately 13 days before trial—defense counsel first became aware that fingerprint evidence had been recovered from a metal cookie tin, and that the cookie tin had not been photographed or vouchered by the New York City Police Department for defense expert’s review.

      . Defendant Garcia’s sentence was enhanced six months by the court.

       Porto may reasonably have felt that his lawyer’s representation was flawed. Defense counsel admitted that it was only on May 29, 2007 that he became aware that defendant’s fingerprint had been taken from a cookie tin in complainant’s apartment and initiated the process of finding out whether the tin had been photographed or vouchered. Counsel must not have read the voluntary disclosure form and attachment that he received from the District Attorney, at the time of defendant’s indictment some eight months earlier, carefully enough to see that the cookie tin needed to be preserved.


author: Pigott, J.

text:
    [944 NE2d 204, 918 NYS2d 766]
    The People of the State of New York, Respondent, v Herbert Aponte, Appellant.
    Argued January 6, 2011;
    decided February 10, 2011

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Jonathan Garelick and Steven Banks of counsel), for appellant.
    I. Attempted stalking in the third degree under subdivision (3) of Penal Law § 120.50 is not a legally cognizable offense. (People v Campbell, 72 NY2d 602; People v Lynn, 115 Misc 2d 76; People v Coleman, 74 NY2d 381; People v Saunders, 85 NY2d 339; People v Miller, 87 NY2d 211; People v Prescott, 95 NY2d 655; People v Jelke, 1 NY2d 321; People v Stuart, 100 NY2d 412; People v Martinez, 81 NY2d 810; People v Flynn, 79 NY2d 879.) II. The factual allegations in the information were insufficient as a matter of law to show a “course of conduct” as required for the count of stalking in the third degree, or to show that appellant repeatedly harassed the complainant as required for the count of first degree harassment. (People v Kalin, 12 NY3d 225; People v Alejandro, 70 NY2d 133; People v Casey, 95 NY2d 354; People v Sedlock, 8 NY3d 535; People v Wood, 59 NY2d 811; People v Webers, 9 Misc 3d 135[A], 2005 NY Slip Op 51673[U]; People v Hogan, 181 Misc 2d 748.)

      Richard A. Brown, District Attorney, Kew Gardens (Daniel Bresnahan and John M. Castellano of counsel), for respondent.
    I. Attempted stalking in the third degree is a legally cognizable crime because the underlying statute punishes conduct rather than unintended results and does not, in and of itself, encompass an attempt. (People v Coleman, 74 NY2d 381; People v Saunders, 85 NY2d 339; People v Miller, 87 NY2d 211; People v Prescott, 95 NY2d 655; People v Dlugash, 41 NY2d 725; People v Bracey, 41 NY2d 296; People v Naradzay, 11 NY3d 460; People v Kassebaum, 95 NY2d 611; People v Fullan, 92 NY2d 690; People v Simmons, 92 NY2d 829.) II. The accusatory instrument was facially sufficient, as the factual allegations established each element of the charged offenses. (People v Miles, 64 NY2d 731; People v Dumas, 68 NY2d 729; People v Kalin, 12 NY3d 225; People v Jones, 9 NY3d 259; People v Henderson, 92 NY2d 677; People v Casey, 95 NY2d 354; People v Iannone, 45 NY2d 589; People v Jacoby, 304 NY 33; People v Allen, 92 NY2d 378; People v Konieczny, 2 NY3d 569.)
   OPINION OF THE COURT

Pigott, J.

We are asked on this appeal to decide whether attempted stalking in the third degree (Penal Law §§ 110.00, 120.50 [3]) is a legally cognizable offense. Because stalking proscribes the performance of certain acts, we hold that the attempt to commit those acts is punishable as a criminal offense.

Defendant was charged by a misdemeanor complaint with the crimes of stalking in the third degree (Penal Law § 120.50 [3]), harassment in the first degree (Penal Law § 240.25) and harassment in the second degree (Penal Law § 240.26). The complaint alleged that defendant followed the complainant for approximately three blocks in his vehicle as she walked from her residence towards her church. After the complainant returned home to contact a friend for a ride to her church, defendant followed the complainant and her friend approximately five blocks, exited his vehicle and confronted the complainant while she was sitting in her friend’s vehicle. Defendant then told the complainant: “I am going to kill you.” The complaint further alleged that defendant had followed the complainant approximately 25 times over the past three years, at various locations.

Criminal Court granted the prosecutor’s motion to reduce the charged count of stalking in the third degree to attempted stalking in the third degree and, as a result, defendant was tried without a jury. He was found guilty of all charges.

Defendant appealed arguing, as relevant here, that attempted stalking in the third degree is not a legally cognizable offense and the allegations in the complaint are too conclusory to provide prima facie evidence of either a course of conduct, as required for the stalking charge, or repeated acts of harassment, as required for one of the harassment counts.

The Appellate Term affirmed the judgment of conviction, finding that the factual allegations of the complaint adequately established every element of the charged offenses. On the issue of whether attempted stalking in the third degree is a legally cognizable offense, the court concluded that it is. (People v Aponte, 24 Misc 3d 118 [2009].)

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

A person commits stalking in the third degree when he or she:

“3. With intent to harass, annoy or alarm a specific person, intentionally engages in a course of conduct directed at such person which is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of such person or a member of such person’s immediate family” (Penal Law § 120.50 [3]).

Defendant argues that a person may not attempt to commit this crime because the statute already encompasses actions in the nature of an attempt. He points out that a defendant may be guilty of the offense even if, for whatever reason, the conduct in fact fails to result in any harm to the intended target.

Under the Penal Law, “[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the. commission of such crime” (Penal Law § 110.00). An attempt exists as an identifiable, separate offense from the crime that is being attempted (see People v Campbell, 72 NY2d 602, 605 [1988]). To prove an attempt, the People must show that the defendant acted for a particular criminal purpose, i.e., with intent to commit a specific crime (id.).

We have previously held that “where a penal statute imposes strict liability for committing certain conduct, an attempt is legally cognizable, since one can attempt to engage in conduct” (People v Prescott, 95 NY2d 655, 659 [2001]). For example, in People v Saunders (85 NY2d 339 [1995]), the viability of attempted criminal possession of a weapon in the third degree was at issue (Penal Law § 265.02 [1]). This crime, we noted, contained no “result” component; rather, the underlying weapons possession crime proscribed particular conduct (85 NY2d at 343). We held that the defendant “may legally and logically attempt to act in the manner proscribed by this penal statute—namely, to attempt to possess a weapon” (id. at 341).

Similarly here, the relevant portions of the penal statute for stalking penalize behavior that is likely to cause harm, and do not require proof of actual harm to establish guilt. While the conduct penalized is defined as engaging in “a course of conduct . . . likely to cause” certain consequences, there is nothing impossible about attempting to engage in such a course of conduct. Thus, if a telephone call or e-mail were “likely to cause” the consequences referred to, an attempt to make such a phone call or send such an e-mail—even if the communication never reached its intended recipient—would be an attempt. In short, the statute strictly penalizes conduct and an attempt to engage in that conduct is not a legal impossibility.

We further agree with the appellate court that the factual allegations of the complaint established every element of stalking in the third degree (Penal Law § 120.50 [3]) and harassment in the first degree (Penal Law § 240.25).

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

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

Order affirmed.


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

text:
    [944 NE2d 1098, 919 NYS2d 459]
    Dale R. San Marco et al., Appellants, v Village/Town of Mount Kisco, Respondent.
    Argued November 16, 2010;
    decided December 16, 2010

      POINTS OF COUNSEL

      Michael Fuller Sirignano, Cross River, for appellants.
    I. The Village/Town of Mount Kisco failed to meet its duty of care to maintain the parking lot in a reasonably safe condition. (City of Rochester v Campbell, 123 NY 405; Taylor v City of Yonkers, 105 NY 202; Preston v State of New York, 59 NY2d 997; Bass v City of New York, 38 AD2d 407, 32 NY2d 894; Duren v City of Binghamton, 172 Misc 580, 258 App Div 694, 283 NY 467; Tompkins v Hunter, 149 NY 117; Transit Commn. v Long Is. R.R. Co., 253 NY 345; Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362; Calderon v New York City Hous. Auth., 37 AD2d 837; Haney v First Natl. Stores, 31 AD2d 547.) II. The Appellate Division incorrectly concluded that the Village/Town of Mount Kisco met its initial burden as the movant for summary judgment. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Torres v

      Industrial Container, 305 AD2d 136; Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436; Joachim v 1824 Church Ave., Inc., 12 AD3d 409; Santoliquido v Roman Catholic Church of Holy Name of Jesus, 37 AD3d 815; Jablons v Peak Health Club, Inc., 19 AD3d 369; Knee v Trump Vil. Constr. Corp., 15 AD3d 545; Karalic v City of New York, 307 AD2d 254; Cody v DiLorenzo, 304 AD 2d 705; Giamboi v Manor House Owners Corp., 277 AD2d 201.) III. The Appellate Division mistakenly applied the Yarborough v City of New York (10 NY3d 726 [2008]) causality test of “immediacy” to this slip and fall on ice case. (Cruz v New York City Tr. Auth., 136 AD2d 196; Roberts v Arrow Boat Club, 46 AD2d 815; Oboler v City of New York, 8 NY3d 888; Bielecki v City of New York, 14 AD3d 301; Smith v County of Orange, 51 AD3d 1006; Ricca v Ahmad, 40 AD3d 728; Knee v Trump Vil. Constr. Corp., 15 AD3d 545; Baillet v Auerbach, 277 AD2d 335; Grizzaffi v Paparodero Holding Corp., 261 AD2d 437; Roca v Gerardi, 243 AD2d 616.) IV Summary judgment was improperly granted because appellants came forward with proof raising triable issues of disputed fact. [City Univ. of N.Y. v Finalco, Inc., 93 AD2d 792; Robinson v Strong Mem. Hosp., 98 AD2d 976; Glick v City of New York, 139 AD2d 402; Conte v Brill, 111 AD2d 210; Cunningham v General Elec. Credit Corp., 96 AD2d 502; Krupp v Aetna Life & Cas. Co., 103 AD2d 252; Rotuba Extruders v Ceppos, 46 NY2d 223; Olivieri v GM Realty Co., LLC, 37 AD3d 569; Vilorio v Suffolk Y Jewish Community Ctr., Inc., 33 AD3d 696; Comstock v Bensky, 275 NY 476.)

      Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Kathleen D. Foley of counsel), for respondent.
    I. The affirmative creation exception to the prior written notice laws properly requires proof that the work performed by the municipality immediately resulted in the creation of a dangerous condition. (Yarborough v City of New York, 10 NY3d 726; Oboler v City of New York, 8 NY3d 888; Schleif v City of New York, 60 AD3d 926; Weiss v Fote, 7 NY2d 579; Amabile v City of Buffalo, 93 NY2d 471; Zahn v City of New York, 299 NY 581; Hirasawa v City of Long Beach, 57 AD3d 846; Diaz v City of New York, 56 AD3d 599; Smith v Village of Rockville Ctr., 57 AD3d 649; Lugo v County of Essex, 260 AD2d 711.) II. Once the Village/Town of Mount Kisco established that it did not receive prior written notice of the dangerous icy condition, the burden shifted to plaintiff to establish that the work performed by the municipality immediately resulted in the creation of the defective condition. (Yarborough v City of New York, 10 NY3d 726; Babenzien v Town of Fenton, 67 AD3d 1236;
      Groninger v Village of Mamaroneck, 67 AD3d 733; Lastowski v V.S. Virkler & Son, Inc., 64 AD3d 1159; Boice v City of Kingston, 60 AD3d 1140; Cimino v City of White Plains, 65 AD3d 1069; Jason v Town of N. Hempstead, 61 AD3d 936.) III. There is no merit to plaintiffs new contention that the parking lot at issue-is not a “highway” within the meaning of the prior written notice laws, nor is that a proper legal question on this appeal. (Misicki v Caradonna, 12 NY3d 511; Quain v Buzzetta Constr. Corp., 69 NY2d 376; City of Mount Vernon v Mount Vernon Hous. Auth., 235 AD2d 516; Walker v Incorporated Vil. of Freeport, 52 AD3d 697; Shannon v Village of Rockville Ctr., 39 AD3d 528; Doherty v Town of Clarkstown, 233 AD2d 477; Peters v City of White Plains, 58 AD3d 824; Tuzzolo v Town of Hempstead, 292 AD2d 446; Bang v Town of Smithtown, 291 AD2d 516; Mendes v Whitney-Floral Realty Corp., 216 AD2d 540.) IV Plaintiffs proof failed to establish that the ice patch on which she slipped was, in fact, directly traceable to the snow piles created by the Village/Town of Mount Kisco. (Mahaney v Neuroscience Ctr., 28 AD3d 432; Simmons v Metropolitan Life Ins. Co., 84 NY2d 972; Scavuzzo v City of New York, 47 AD3d 793; Lopez v G&J Rudolph Inc., 20 AD3d 511; McCord v Olympia & York Maiden Lane Co., 8 AD3d 634.)

      Timothy J. Keane, New York City, Brendan T. Fitzpatrick, David B. Hamm and Fiedelman & McGaw, Jericho (Andrew Zajac and Dawn C. DeSimone of counsel), for Defense Association of New York, Inc., amicus curiae.
    The Village/Town of Mount Kisco neither created nor had written notice of black ice upon which plaintiff allegedly slipped. (MacMullen v City of Middletown, 187 NY 37; Amabile v City of Buffalo, 93 NY2d 471; Yarborough v City of New York, 10 NY3d 726; Oboler v City of New York, 8 NY3d 888; Gorman v Town of Huntington, 12 NY3d 275; Bielecki v City of New York, 14 AD3d 301; Stallone v Long Is. R.R., 69 AD3d 705; Rudden v Bernstein, 61 AD3d 736; Carlo v Town of Babylon, 55 AD3d 769; Lincourt v Village of W. Winfield, 55 AD3d 1438.)
   OPINION OF THE COURT

Chief Judge Lippman.

This appeal presents the question of whether a prior written notice statute acts as an absolute bar to recovery against a municipality where a plaintiff slipped and fell on black ice that formed on the municipality’s property. Since the ice hazard at issue may have been created by the municipality’s negligent snow removal efforts, and, if so, the municipality may have known of the hazard, we conclude that Supreme Court properly denied defendant’s motion for summary judgment.

Plaintiff Dale San Marco slipped and fell in a parking lot owned by defendant Village/Town of Mount Kisco (the Village) while on her way to work on Saturday, February 5, 2005 at approximately 8:15 a.m. At 4:45 am. on the previous morning, the Village had treated the parking lot for ice conditions. However, the Village did not employ a work crew on Saturdays and Sundays to monitor the parking lot for dangerous conditions. It is undisputed that in the interim between the Village’s last inspection and salting of the lot early on Friday morning and San Marco’s fall on Saturday morning, the air temperature had risen above freezing for approximately 19 hours and then dropped.

As a result of her fall, San Marco suffered a concussion, fractured her sacrum and herniated several cervical discs. Her injuries required a bone graft and surgical installation of a titanium plate affixed to her spine and secured by 13 screws. In May 2005, San Marco and her husband, suing derivatively, commenced this action, seeking to recover damages for her personal injuries. San Marco alleged that she fell on a patch of black ice that was caused by the melting and refreezing of a pile of snow that the Village had plowed into a row of meters adjacent to the parking spaces. San Marco further alleged both that the Village was negligent in plowing the snow so near the parking spaces and negligent in failing to take measures to remedy any dangerous ice conditions that developed.

In response, the Village asserted that Village Law § 6-628 and Village of Mount Kisco Code § 93-47 shielded it from liability in the absence of prior written notice. Pursuant to Village Law § 6-628, a municipality cannot be liable as a matter of law “unless written notice of the defective, unsafe, dangerous or obstructed condition or of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk.” The Village consequently established before the motion court that its clerk had not received written notice regarding a defective condition in the parking lot where San Marco fell.

Supreme Court, however, rejected the Village’s argument that the action should be dismissed because no one had given written notice of a black ice condition. The court reasoned that the Village’s snow removal procedure triggered an exception to the written notice statute, finding a question of fact as to whether the Village might have created the hazardous ice condition. Under Amabile v City of Buff alo (93 NY2d 471 [1999]), a prior written notice statute does not protect a municipality from liability if it can be proven that the “locality created the defect or hazard through an affirmative act of negligence” (id. at 474).

The Appellate Division reversed and granted the Village summary judgment, concluding that this Court’s holdings in Yarborough v City of New York (10 NY3d 726 [2008]) and Oboler v City of New York (8 NY3d 888 [2007]) controlled in cases of melting and freezing snow. Yarborough and Oboler, which respectively dealt with hazards caused by a pothole and an uneven manhole cover, held that the “affirmative negligence” exception to prior written notice statutes applies only where the action of the municipality “immediately results in the existence of a dangerous condition” (Yarborough, 10 NY3d at 728, quoting Oboler, 8 NY3d at 889). Reasoning that this “immediacy test” extends to snow melting cases, the Second Department found that the Village’s action of snowplowing did not amount to “immediate creation” of the hazard that San Marco allegedly encountered (57 AD3d 874, 877 [2d Dept 2008]). Rather, the Court found, “the environmental factors of time and temperature fluctuations . . . caused the allegedly hazardous condition” (id.).

The Appellate Division granted plaintiffs leave to appeal. We reverse and deny summary judgment.

Reviewing the public policy rationale for prior written notice statutes, as well as the factual distinctions between each category of case, we conclude that the immediacy requirement for “pothole cases” should not be extended to cases involving hazards related to negligent snow removal. In reaching the conclusion that the Village should not be shielded from liability as a matter of law in the present case, we uphold the general underlying purpose of prior written notice statutes. Although it can be harsh for plaintiffs in many cases, it is sensible that the municipality is exempt from liability for injuries on public property unless the municipality knew of the problem. Prior written notice statutes were designed precisely to release municipalities from the “vexing problem of municipal street and sidewalk liability” (Barry v Niagara Frontier Tr. Sys., 35 NY2d 629, 633 [1974]) when they have no reasonable opportunity to remedy the problem (see e.g. Jagoda v City of Dunkirk, 43 AD2d 795, 796 [4th Dept 1973] [“Notice provisions . . . are intended to insure that a municipality be given reasonable opportunity to cure defective conditions, the existence of which it could not be expected to know absent some sort of positive apprisal”]).

We recognized the importance of actual notice in Doremus v Incorporated Vil. of Lynbrook (18 NY2d 362 [1966]), stating that prior written notice statutes represent “an effort to exempt. . . villages from liability for holes and breaks of a kind which do not immediately come to the attention of the village officers unless they are given actual notice thereof’ (id. at 366). In keeping with this emphasis, we developed in Amabile the exception for the municipality’s affirmative creation of the hazardous condition that caused injury.

Then, in Yarborough and Oboler, we held that a municipality could only be liable for its actions that immediately produced a hazardous condition. These holdings merely reinforced the object of prior written notice statutes to protect municipalities from liability for a road construction or repair, recognizing the difficulty in determining, after the passage of time, whether the initial repair was negligent. At the same time, the affirmative negligence exception addressed situations where a hazard was foreseeable, insofar as the municipality created it by, for example, digging an unmarked ditch in a road or neglecting to cover a street drain.

Considering the present facts in light of the underlying purpose of prior written notice statutes, we find these statutes were never intended to and ought not exempt a municipality from liability as a matter of law where a municipality’s negligence in the maintenance of a municipally owned parking facility triggers the foreseeable development of black ice as soon as the temperature shifts. Unlike a pothole, which ordinarily is a product of wear and tear of traffic or long-term melting and freezing on pavement that at one time was safe and served an important purpose, a pile of plowed snow in a parking lot is a cost-saving, pragmatic solution to the problem of an accumulation of snow that presents the foreseeable, indeed known, risk of melting and refreezing.

Moreover, a patch of pavement may gradually and unpredictably deteriorate, making the point at which the efficacy of the initial repair ceases unknown to the municipality. It is therefore understandable that the hazard may escape detection until the municipality receives written notice of the problem. However, in the case of black ice that forms from plowing snow in a municipally owned parking facility, a municipality should require no additional notice of the possible danger arising from its method of snow clearance apart from widely available local temperature data. Indeed, there is evidence that in the case at bar, the Village treated the same parking lot with salt and sand the day before the accident, in order to limit the hazards of black ice. Thus, the determinative factor in this case should be whether the Village’s snow removal efforts created the ice condition on which San Marco fell.

We have recognized the problem of negligent snow removal going back to 1949 in Zahn v City of New York (299 NY 581 [1949]), where judgment for the injured plaintiff was affirmed upon similar facts—that a plaintiff fell on black ice that had accumulated as a result of melting and refreezing of snow that the property owner had shoveled on the sidewalk in front of her home. Although this case involved a private defendant, since that time there have been Appellate Division cases holding that a municipal defendant may be liable for a negligent ice condition without prior written notice. For example, on almost identical facts to the present case, in Smith v County of Orange (51 AD3d 1006 [2d Dept 2008]), the Second Department held that there was a triable issue of fact “regarding whether the ice upon which the plaintiff slipped was formed when snow piles created by the County’s snow removal efforts melted and refroze” (id. at 1006; see also Brownell v City of New York, 277 AD2d 31 [1st Dept 2000], lv denied 96 NY2d 712 [2001]; Rector v City of New York, 259 AD2d 319 [1st Dept 1999]; Glick v City of New York, 139 AD2d 402 [1st Dept 1988]).

We do not hereby create a new burden on municipalities to remove all snow off-premises in order to avoid liability (see e.g. Zwielich v Incorporated Vil. of Freeport, 208 AD2d 920 [2d Dept 1994]). Nor do we seek to render the municipality an insurer of pedestrians. However, at this juncture, plaintiff raises triable issues of fact that compel denial of summary judgment. Primarily, a jury must decide whether San Marco fell on ice created by the Village’s snow clearance operation. And relatedly, there are factual issues concerning whether the Village exercised its duty of care to maintain the parking lot in a reasonably safe condition by plowing snow high alongside active parking spaces, and in failing to salt or sand the lot on weekends, despite the fact that it remained open seven days a week.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant’s motion for summary judgment denied. The certified question need not be answered upon the ground that it is unnecessary.

Smith, J. (dissenting).

The majority opinion seems to say that no written notice requirement applies in this case because the Village should have foreseen that its method of removing snow would create a hazard. This amounts to saying that no written notice is required because the municipality was negligent. But the whole point of written notice legislation is to protect municipalities from liability, even where they are negligent, unless they have received written notice of the hazard in question. The majority decision frustrates this legislative aim, contradicting both the text of the written notice requirements and our recent holdings in Oboler v City of New York (8 NY3d 888 [2007]) and Yarborough v City of New York (10 NY3d 726 [2008]). I therefore dissent.

Village Law § 6-628 says:

“No civil action shall be maintained against the village for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed or for damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk, street, highway, bridge or culvert unless written notice of the defective, unsafe, dangerous or obstructed condition or of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or to cause the snow or ice to be removed, or the place otherwise made reasonably safe.”

Village of Mount Kisco Code § 93-47 is very similar:

“No civil action shall be brought or maintained against the Village of Mount Kisco for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed or in consequence of the existence or accumulation of snow or ice upon any street, highway, bridge, culvert, sidewalk or crosswalk, unless written notice of the existence of such condition, relating to the particular place, had theretofore actually been given to the Board of Trustees of the Village of Mount Kisco and there had been a failure or neglect on the part of said village to cause such condition to be corrected or such snow or ice to be removed or the place otherwise made reasonably safe within a reasonable time after the receipt of such notice.”

Written notice requirements of this kind are common in New York. Ordinarily they do not, as these provisions do not, include in their text an exception for hazards the municipalities created. We have nevertheless recognized such an exception—not, as the majority implies, to nullify the requirement in every case in which a municipality negligently fails to foresee the consequence of its actions, but to take account of cases in which a prior written notice requirement would be anomalous. Thus, if a city construction crew digs a hole in the street, it would seem absurd to immunize the city from lawsuits by pedestrians who fall in the hole on the ground that no one gave the city written notice of the hole’s existence (see Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366 [1966] [written notice requirements were designed to exempt municipalities from roadway defects “which do not immediately come to the attention of the village officers”]). Kiernan v Thompson (73 NY2d 840 [1988]) was a case of this type. Where the City of Ithaca, in removing a tree stump, had left a crack in the sidewalk, we held that “since the City created the crack in the pavement, plaintiff was not required to provide it with prior written notice of the unsafe condition” (id. at 842).

Our cases also recognize, however, that the rationale of the exception does not apply where a condition that the municipality creates is not immediately dangerous, but becomes so with the passage of time. In such cases the municipality may be at fault for not foreseeing the danger, but that is irrelevant; there is, by hypothesis, fault by the municipality in every case to which a prior written notice requirement applies. Where the danger is not the immediate result of the municipality’s negligent act, it cannot be said with certainty—as it can in the case of the hole the city itself dug—that the municipality actually knew of the danger. In such cases, therefore, the municipality is entitled to prior written notice.

As the Appellate Division explained in Bielecki v City of New York (14 AD3d 301, 301-302 [1st Dept 2005]):

“We understand the affirmative negligence exception to the notice requirement to be limited to work by the City that immediately results in the existence of a dangerous condition. . . . If we were to extend the affirmative negligence exception to cases like this one, where it is alleged that a dangerous condition developed over time from an allegedly negligent municipal repair, the exception to the notice requirement would swallow up the requirement itself, thereby defeating the purpose of the Pothole Law.”

We adopted the reasoning of Bielecki in two recent cases, Oboler (8 NY3d at 889-890 [case dismissed where plaintiff failed to show that a height differential between a manhole cover and the adjoining asphalt existed immediately after the city’s resurfacing of the roadway]) and Yarborough (10 NY3d at 728 [case dismissed where city was allegedly negligent in repairing a pothole, causing deterioration “over time with environmental wear and tear”]). These cases effectively overruled our affirmance several decades ago of the Appellate Division’s decision in Muszynski v City of Buffalo (33 AD2d 648 [4th Dept 1969], affd on op below 29 NY2d 810 [1971]). Oboler and Yarborough essentially adopt the view of Judge Scileppi, dissenting in Muszynski, that written notice is required where “the dangerous condition was not created immediately and consequently” upon a municipality’s action (29 NY2d at 813).

The majority here distinguishes Oboler and Yarborough on the ground that those cases involved defects in the pavement itself, not ice that formed on the pavement. The majority’s reasoning is that, while it is “understandable” that deterioration of the pavement resulting from negligent street repair “may escape detection” (majority op at 117), a negligently created pile of snow “presents the foreseeable, indeed known, risk of melting and refreezing” (id. at 117). But this confuses the issue of written notice with the issue of negligence. If a risk is neither foreseeable nor known, the municipality is not liable for it at all—the written notice statute is unnecessary. The premise of the plaintiffs case, in a case like Oboler or Yarborough, is that the municipality should have foreseen, but negligently failed to foresee, that its way of repairing the streets would cause the pavement to deteriorate. There is, in other words, no logical distinction between pavement-defect cases like Oboler and Yarborough and snow-and-ice cases like this one. The written notice requirements here apply by their terms to the “accumulation of snow or ice.”

Of course it can be said in a case like this—as it could be said in Oboler, Yarborough, Bielecki and similar cases—that it is unfair to leave plaintiffs uncompensated for an injury that a municipality negligently caused, but that is what prior written notice requirements do. Such requirements may be harsh, but they are “a valid exercise of legislative authority” (Amabile v City of Buffalo, 93 NY2d 471, 473 [1999]). The State, which has created municipalities and has, by abrogating the old rule of sovereign immunity, permitted citizens to bring actions against them, has chosen to limit those lawsuits to cases in which a municipality has received written notice of the hazard complained of. Because the Village here received no such notice, this case should be dismissed.

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

Order reversed, etc.


author: Graffeo, J.

text:
    [944 NE2d 634, 919 NYS2d 99]
    The People of the State of New York, Respondent, v Tony Weaver, Appellant.
    Argued January 4, 2011;
    decided February 10, 2011

      POINTS OF COUNSEL

      William G. Pixley, Rochester, and Ronald C. Valentine, Public Defender, Lyons, for appellant.
    I. Until a dispute reaches the point where it has potential or immediate public ramifications, it is not punishable as disorderly conduct. Whether a dispute has reached that defining moment depends upon the nature and number of people attracted by the commotion. Missing is evidence that Mr. Weaver’s dispute attracted any public attention. Thus, there is legally insufficient evidence supporting the verdict convicting him of disorderly conduct. (People v Munafo, 50 NY2d 326; People v Chesnick, 302 NY 58; People v Canner, 88 Misc 2d 85, 40 NY2d 886; People v Todaro, 26 NY2d 325; People v Perry, 265 NY 362; People v Pritchard, 27 NY2d 246; People v Tichenor, 89 NY2d 769, 522 US 918; People v Szepansky, 25 Misc 2d 239; People v Monnier, 280 NY 77; People v Galpern, 259 NY 279.) II. A jury charge fails in its purpose if it is misleading. The charge in this case on disorderly conduct was misleading to the extent it did not include requested language reflecting the holding of People v Munafo (50 NY2d 326 [1980]). A jury, upon hearing the entire charge, would not gather from its language that the required risk is measured not by the place of the disturbance but by the nature and number of the people attracted to the commotion. (People v Samuels, 99 NY2d 20; People v Ladd, 89 NY2d 893; People v Mike, 92 NY2d 996; People v Odell, 230 NY 481; People v Owens, 69 NY2d 585.) III. Absent proof of probable cause to arrest, a conviction for resisting arrest cannot stand. There is legally insufficient proof of probable cause to arrest Mr. Weaver for disorderly conduct. Thus, that count charging him with resisting arrest should be dismissed. (People v Jensen, 86 NY2d 248; People v Maldonado, 86 NY2d 631; People v Carrasquillo, 54 NY2d 248; People v Robinson, 97 NY2d 341; People v Cooper, 38 AD3d 678; People v Peters, 136 AD2d 750, 72 NY2d 864; People v Mehdi, 29 NY2d 824; People v Welch, 289 AD2d 936, 98 NY2d 641; People v Ormsby, 30 AD3d 757; People v Early, 85 AD2d 752.)

      Richard M. Healy, District Attorney, Lyons (Wendy Evans Lehmann of counsel), for respondent.
    I. The evidence at trial was sufficient for a rational trier of fact to have found beyond a reasonable doubt that defendant used abusive language and engaged in violent, tumultuous or threatening behavior in a public place and recklessly created a risk of causing public inconvenience, annoyance or alarm. (People v Munafo, 50 NY2d 326; People v Diaz, 22 Misc 3d 624; People v Todaro, 26 NY2d 325; People v Galpern, 259 NY 279; People v Most, 171 NY 423; People v Carter, 163 Misc 2d 643; People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Gaimari, 176 NY 84; People v Bleakley, 69 NY2d 490.) II. Defendant’s claim concerning the legal sufficiency of the jury instruction on disorderly conduct is only partially preserved. In any event, both the charges concerning disorderly conduct were sufficient to convey the correct rules to be applied. Defendant was not entitled to the precise phraseology he wanted, and the charges as given were correct and sufficient. (People v Gray, 86 NY2d 10; People v Munafo, 50 NY2d 326; People v Samuels, 99 NY2d 20; People v Most, 171 NY 423; People v Diaz, 22 Misc 3d 624; People v Ladd, 89 NY2d 893; People v Russell, 266 NY 147.) III. There was legally sufficient proof at trial that the arresting officer had reasonable cause to believe an offense had been or was being committed in her presence. Other proof being uncontrovertedly sufficient, the evidence supporting the verdict of guilty of resisting arrest was legally sufficient. (People v Early, 85 AD2d 752; People v Todaro, 26 NY2d 325; People v Galpern, 259 NY 279; Brinegar v United States, 338 US 160; People v McDermott, 279 AD2d 361, 96 NY2d 803; People v Laltoo, 22 AD3d 230; People v Putt, 303 AD2d 992; People v Thomas, 239 AD2d 246, 90 NY2d 911; People v Martin, 222 AD2d 528, 88 NY2d 850; People v Mayi, 198 AD2d 444.)
   OPINION OF THE COURT

Graffeo, J.

The issue raised by this appeal is whether defendant’s convictions for disorderly conduct are supported by legally sufficient evidence. We conclude that they are and therefore affirm the order of the Appellate Division.

At around 1:25 a.m. on May 25, 2008, Sergeant House, while on routine patrol in the Village of Newark, came upon defendant Tony Weaver yelling and waving his arms at a woman in a parking lot outside of a hotel. Both were dressed in wedding attire. When the officer stopped her vehicle, defendant walked across the street and entered a mini-mart gas station. The woman, who was sitting on the curb and in tears, explained to House that defendant and she had been married that day and had been fighting. The woman declined House’s offer of help and assured the officer that she would stay the night at the hotel.

As House began to drive out of the lot, she observed defendant leave the mini-mart. When his wife approached him, defendant again became agitated and began yelling at her. He shouted at his wife to “get the f— away from me,” among a stream of other obscenities. After observing this encounter, House pulled her vehicle near defendant and suggested that he calm down and that the couple needed to take their dispute somewhere else. Defendant responded by telling the officer to “shut the f— up” because she “wasn’t his mother” and could not tell him what to do. House described defendant’s tone as “[v]ery loud” and his demeanor as “very aggressive” and “very threatening.” She also believed that he was intoxicated.

Sensing that the situation was escalating and that defendant was creating a disturbance, House radioed for backup. She then exited her vehicle and warned defendant that he needed to stop yelling and swearing or he would be arrested for disorderly conduct. Defendant again loudly used profanity and declared that “if you put your hands on me, bitch, you will be taking me to jail.” At around this time, Sergeant Thomson arrived in response to House’s radio call. House gave defendant a third warning to settle down. He refused to comply, instead continuing to hurl obscenities at his wife and House, causing House to conclude that defendant was not going to quiet down. House then advised defendant that he was under arrest for disorderly conduct. When House directed defendant to get into the back seat of the police vehicle, he refused and a struggle ensued, during which defendant punched Thomson in the face and injured House’s arm. The officers eventually arrested defendant after Thomson used a taser to subdue him.

At the time of the incident, the hotel and mini-mart were both open for business. Two employees were inside the mini-mart and at least one customer was using a gas pump during the commotion. In addition, two vehicles accessed a nearby ATM while the disturbance progressed.

Following his arrest, defendant was indicted for assault in the second degree (Penal Law § 120.05 [3]), resisting arrest (Penal Law § 205.30) and two counts of disorderly conduct (Penal Law § 240.20 [1], [3]). A jury acquitted defendant of second-degree assault but convicted him of resisting arrest and both counts of disorderly conduct. Defendant was sentenced to one year for resisting arrest and 15 days for each of the disorderly conduct convictions, all to be served concurrently. The Appellate Division affirmed (68 AD3d 1781 [4th Dept 2009]), and a Judge of this Court granted defendant leave to appeal (14 NY3d 807 [2010]).

Defendant argues that the evidence was legally insufficient to sustain the disorderly conduct convictions. He maintains that his behavior did not have the requisite potential or actual ramifications related to a public disturbance because there was no proof that the altercation with his wife and the police officers attracted attention from or annoyed any bystanders. The People respond that the evidence, viewed in the light most favorable to the prosecution, was legally sufficient to establish defendant’s guilt beyond a reasonable doubt.

As relevant here, a person is guilty of disorderly conduct when

“with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
“1. He engages in fighting or in violent, tumultuous or threatening behavior; or . . .
“3. In a public place, he uses abusive or obscene language, or makes an obscene gesture” (Penal Law § 240.20 [1], [3]).

Defendant acknowledges that there was ample proof that he committed the conduct described in subdivisions (1) and (3), but claims that he did not recklessly create a risk of public inconvenience, annoyance or alarm because the confrontation was not public; instead it was merely a private encounter.

It is well established that “the disruptive behavior proscribed by our disorderly conduct statute be of public rather than individual dimension” (People v Munafo, 50 NY2d 326, 331 [1980]). As we have explained:

“[Disorderly conduct is a statutory creation. Intended to include in the main various forms of misconduct which at common law would often be prosecuted as public nuisances ... a common thread that ran through almost all of this legislation was a desire to deter breaches of the peace or, more specifically, of the community’s safety, health or morals. . . . And, although it has always been difficult to essay any precise definition of breach of the peace . . . , this court has equated that term with public inconvenience, annoyance or alarm, the governing phrase of our current disorderly conduct statute” (People v Tichenor, 89 NY2d 769, 773-774 [1997] [internal quotation marks, citation and emphasis omitted], cert denied 522 US 918 [1997]).

Consequently, a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes “a potential or immediate public problem” (Munafo, 50 NY2d at 331). In assessing whether an act carries public ramifications, relevant factors to consider are the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature and number of those attracted; and any other relevant circumstances (see id.; People v Pritchard, 27 NY2d 246, 248-249 [1970]).

And, contrary to defendant’s position, there is no per se requirement that members of the public must be involved or react to the incident. Rather, the attention generated by a defendant’s activities, or the lack thereof, is a relevant factor to be considered in the public dimension calculus. We have made clear that a defendant may be guilty of disorderly conduct regardless of whether the action results in public inconvenience, annoyance or alarm if the conduct recklessly creates a risk of such public disruption (see People v Todaro, 26 NY2d 325, 329 [1970] [stating that the defendant’s “emphasis on the contention that the fact of disorder was not established, to the exclusion of the risk that it might come to pass, ignores the very terms of the statute itself’ (emphasis omitted)]; People v Kennedy, 19 NY2d 761, 762 [1967] [“It is enough that disorder was threatened by defendant’s conduct”]).

Here, the commotion occurred during the early morning hours when peace and quiet would be expected in this small village. The incident began in a public parking lot adjacent to a hotel and extended into a public street near the hotel and mini-mart, both of which were open for business. Although there was no testimony at trial from onlookers, there was evidence that a number of people were in the immediate vicinity, whether pumping gas, using the ATM or working at the mini-mart. It can also reasonably be inferred that guests were sleeping in the nearby hotel.

Moreover, over a short time period, defendant’s conduct escalated into a very vocal and aggressive confrontation. House warned defendant on three separate occasions to cease his conduct and leave the area. Rather than heed these warnings, defendant became increasingly agitated and belligerent, repeatedly shouting obscenities at his wife and the officer. After the final warning, House determined that defendant was not going to cease creating a disturbance and effectuated his arrest with the help of Thomson. On these facts, we believe that the jury had sufficient evidence to “weigh the whole incident” (Tichenor, 89 NY2d at 776) and logically conclude beyond a reasonable doubt that defendant recklessly created a risk of public inconvenience, annoyance or alarm within the meaning of the statute. In other words, based on the events leading up to defendant’s arrest, there is a valid line of reasoning and permissible inferences from which a jury could have found that his conduct reached the point of “a potential or immediate public problem” (Munafo, 50 NY2d at 331).

Defendant’s remaining contentions are either without merit or academic.

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

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

Order affirmed.


text:
    [944 NE2d 637, 919 NYS2d 102]
    Virgil Smith, Individually and as Parent and Natural Guardian of Derek Smith, Respondent, v Hazel E. Sherwood et al., Defendants, and Central New York Regional Transportation Authority, Also Known as Centro, Inc., et al., Appellants.
    Argued January 11, 2011;
    decided February 15, 2011

      POINTS OF COUNSEL

      Mackenzie Hughes LLP, Syracuse (W. Bradley Hunt and Stephen T. Helmer of counsel), for appellants.
    I. Plaintiff’s negligence claim should be dismissed because the Centro, Inc. defendants had no duty to Derek Smith after he safely left the bus. (Kramer v Lagnese, 144 AD2d 648; Sigmond v Liberty Lines Tr., 261 AD2d 385; Wisoff v County of Westchester, 296 AD2d 402; Ortola v Bouvier, 110 AD2d 1077; Mooney v Niagara Frontier Tr. Metro Sys., 125 AD2d 997; Rodriguez v Manhattan & Bronx Surface Tr. Operating Auth., 117 AD2d 541; Georges v Rajnarine, 277 AD2d 283; Blye v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106; Sewar v Gagliardi Bros. Serv., 69 AD2d 281, 51 NY2d 752; McDonald v Central School Dist. No. 3 of Towns of Romulus, Varick & Fayette, Seneca County, 179 Misc 333, 264 App Div 943, 289 NY 800.) II. Plaintiffs negligence claim also should be dismissed because the Centro, Inc. defendants did not proximately cause Derek Smith’s accident. (Miller v Fernan, 73 NY2d 844; Sigmond v Liberty Lines Tr., 261 AD2d 385; Mooney v Niagara Frontier Tr. Metro Sys., 125 AD2d 997; Ortola v Bouvier, 110 AD2d 1077.)

      Kenny and Kenny, PLLC, Syracuse (Michael P. Kenny and Erin K. Skuce of counsel), for respondent.
    I. The Appellate Division, Fourth Department, appropriately modified the order of the Supreme Court, thereby reinstating the negligence claim against the Centro, Inc. defendants. (Ugarriza v Schmieder, 46 NY2d 471; Andre v Pomeroy, 35 NY2d 361; Zuckerman v City of New York, 49 NY2d 557; Cammarere v Villanova, 166 AD2d 760; Sewar v Gagliardi Bros. Serv., 51 NY2d 752; Pratt v Robinson, 39 NY2d 554; Chainani v Board of Educ. of City of N.Y., 87 NY2d 370; Keiser v Elmer, 225 AD2d 589; McDonald v Central School Dist. No. 3 of Towns of Romulus, Varick & Fayette, Seneca County, 289 NY 800; Wolf v City of New York, 39 NY2d 568.) II. The Centro, Inc. defendants failed to establish as a matter of law that their conduct was not a proximate cause of the incident. (Lockhart v Adirondack Tr. Lines, 289 AD2d 686; Mirand v City of New York, 84 NY2d 44; Van Gaasbeck v Webatuck Cent. School Dist. No. 1, 21 NY2d 239; Ferrer v Harris, 55 NY2d 285.)

      Steven B. Weingarten, Albany, for New York Public Transit Association, amicus curiae.
    The Appellate Division’s ruling adversely affects public transportation operators that transport students to and from school on public buses. (Wisoff v County of Westchester, 296 AD2d 402; Sigmond v Liberty Lines Tr., 261 AD2d 385; Kramer v Lagnese, 144 AD2d 648.)
   OPINION OF THE COURT

Graffeo, J.

Defendant Central New York Regional Transportation Authority, also known as Centro, contracted with the Syracuse City School District to provide students in the District with bus transportation to and from various schools. Centro buses were public buses, not yellow school buses that are generally associated with the transportation of school students and are outfitted with specially designed safety equipment. The contract did not prohibit members of the public from riding on Centro’s buses when students were being transported, but there were exterior signs that read “Special” posted on these buses to inform potential nonstudent riders that the buses were not following normal routes.

In October 2002, Derek Smith was 12 years old and attended seventh grade at a private school in the Syracuse area. At the beginning of the school year, Derek and other students attended a presentation regarding proper bus safety. They were instructed not to cross in front of buses and to wait until buses were at least a block away before attempting to cross streets. The purpose of this cautionary advice was to alert the students that stopped buses could block their ability to see traffic. Similar instructions were repeated in written materials that were distributed to the students and the warnings were reiterated on signs in Centro buses. Centro’s rules also required its bus drivers to use the public address system on the buses twice a week to repeat these cautions to students.

After school on October 3, 2002, Derek got on a Centro bus being driven by defendant Theodore Gray. Derek usually disembarked at a designated stop on the west side of South Salina Street (a four-lane road) near West Cheltenham Road, the side of the street nearest to his home. That day, the bus driver went past Derek’s stop, either because Derek did not pull the bus cord to inform the driver that he wanted to get off or because the driver did not hear or ignored the signal. After the bus turned around in a parking lot (pursuant to its scheduled route), it stopped on the east side of South Salina Street and Derek exited the bus. He immediately walked in front of the bus and into the adjoining lane of traffic, where he was struck by an automobile traveling in the same direction as the bus. Derek was seriously injured in the accident.

Derek’s father commenced this action against Centro, Gray and others. As relevant to this appeal, the complaint asserted that Centro and Gray had breached their common-law duty to Derek and violated the statutory provisions that regulate school buses. Centro and Gray moved for summary judgment dismissing the complaint. Supreme Court granted their motion, but the Appellate Division, with two Justices dissenting, modified and reinstated the common-law negligence claim (68 AD3d 1785 [2009]). The Appellate Division then certified a question to us asking whether its order was proper.

We answer the certified question in the negative. It has long been the rule that “[a] common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area” (Miller v Fernan, 73 NY2d 844, 846 [1988], citing Fagan v Atlantic Coast Line R.R. Co., 220 NY 301, 306-307 [1917]). Once that occurs, no further duty exists, even if the disembarking passenger is a schoolchild who attempts to cross a street by passing in front of a stopped bus (see e.g. Wisoff v County of Westchester, 296 AD2d 402 [2d Dept 2002]; Sigmond v Liberty Lines Tr., 261 AD2d 385, 387 [2d Dept 1999]; Kramer v Lagnese, 144 AD2d 648, 649 [2d Dept 1988]; Mooney v Niagara Frontier Tr. Metro Sys., 125 AD2d 997, 998 [4th Dept 1986]). Although plaintiff correctly notes that there is a question of fact regarding the reason why Derek was dropped off on the east side of South Salina Street instead of the west side, it is unnecessary to resolve that factual issue because Derek exited the bus at a safe location, terminating the . duty owed to him by Centro and Gray.

In allowing the negligence claim to proceed, the Appellate Division relied, in part, on Sewar v Gagliardi Bros. Serv. (51 NY2d 752 [1980]). Sewar, however, involved a yellow school bus subject to the mandated use of specific safety equipment under Vehicle and Traffic Law § 375 (20). Such specially-equipped school buses are statutorily required to stop “with red signal lights flashing” until a passenger needing to cross a street does so (Vehicle and Traffic Law § 1174 [b]). Furthermore, a violation of Vehicle and Traffic Law § 1174 (b) may serve as the basis for a viable cause of action (see Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 382-383 [1995]; Van Gaasbeck v Webatuck Cent. School Dist. No. 1, 21 NY2d 239, 244-245 [1967]). Concomitantly, the Vehicle and Traffic Law provides that all operators of motor vehicles must stop when approaching a school bus with red flashing lights (see Vehicle and Traffic Law § 1174 [a]). The public bus that Derek rode, however, was not subject to these rules (see Vehicle and Traffic Law § 375 [20]) and its driver therefore did not have the legal authority (or the necessary safety equipment) to make other vehicles stop while Derek crossed the street. In the absence of the special duty that applies to yellow school buses, Centro and Gray are entitled to summary judgment dismissing the complaint against them.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the common-law negligence claim against defendants Centro and Theodore R. Gray dismissed and the certified question answered in the negative.

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

Order, insofar as appealed from, reversed, etc.