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

text:
    [71 NE3d 563, 49 NYS3d 72]
    The People of the State of New York, Respondent, v Gregory Vining, Appellant.
    Argued January 3, 2017;
    decided February 14, 2017

      POINTS OF COUNSEL

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Margaret E. Knight of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Ross D. Mazer, Sheila L. Bautista and Susan Axelrod of counsel), for respondent.
   OPINION OF THE COURT

Abdus-Salaam, J.

The trial court did not abuse its discretion as a matter of law in admitting a phone call between defendant and his ex-girlfriend as an adoptive admission. Once the People satisfied the threshold evidentiary requirements for admissibility, the call was properly placed before the jury to weigh its import and significance. That the call was recorded while defendant was incarcerated does not change our analysis.

1—1

Defendant was charged with several counts of assault, trespass and criminal mischief, all arising out of incidents involving him and his ex-girlfriend. The proof at trial established that they had a tumultuous relationship. The People introduced evidence of separate crimes from different dates. One involved defendant purposefully breaking the victim’s cable box and hitting her in the face; another involved him pushing her to the ground and stomping on her chest, ultimately breaking two of her ribs; and the third involved him entering her apartment without her permission and remaining until he was arrested. As the People conceded, the victim was not the most reliable witness. She had problems with alcohol and drugs, a criminal history which included violence toward other ex-partners, mental health issues related to depression and schizophrenia, and had, on more than one occasion, either lied to or been less than forthcoming with the police and the District Attorney’s Office. She did not appear for her scheduled testimony at the start of trial and had to be forcibly brought to court in handcuffs. The jury was aware of these issues.

During the trial, the court, upon the People’s application, allowed the prosecutor to play a telephone call made from defendant to the victim while he was incarcerated. The People sought to introduce the call as an adoptive admission by silence, which defendant opposed. During the conversation, the victim repeatedly accused defendant of breaking her ribs. Defendant never denied the allegations, and instead gave non-responsive and evasive answers. For example, after she forcefully stated many times that he had broken her ribs and shown no sympathy, his response was “so I’m a threat to you?” When she said he needed time to think and change so he would not do this to anyone else, he responded by asking whether his brother had called her. They also discussed a potential jail sentence, when he accused her of “not caring” if he got “a year.”

The trial court allowed defense counsel to craft a limiting instruction, and counsel offered the following, which the court read to the jury before the call was played and again during its final charge:

“I’m allowing the conversation into evidence for the limited purpose of having you determine if such failure to respond and to remain silent is indeed an admission, and if you so find, give such admission whatever weight you deem appropriate in determining its significance.
“In making this determination, you should apply the same tests you would use in your own everyday life in doing so.
“You may wish to keep in mind, one, an individual [⅛] silence may be attributable to his awareness that he is under no obligation to speak.
“Two: An individual’s natural caution that arises from his knowledge that anything he says may be used against him.
“Three: An individual may refrain from speaking because he believes that efforts to exonerate himself under the circumstances would be futile.
“Now, to the extent that the telephone call references the potential jail sentence, the jury is to disregard that portion of the call.”

The jury found defendant guilty of attempted assault in the third degree, assault in the third degree, criminal mischief in the fourth degree, and criminal trespass in the second degree. The Appellate Division modified the judgment in a manner not relevant to this appeal, and otherwise affirmed, holding that the trial court properly exercised discretion in admitting the call (126 AD3d 623 [1st Dept 2015]). A Judge of this Court granted defendant leave to appeal (26 NY3d 1093 [2015]), and we now affirm.

II.

An adoptive admission occurs “when a party acknowledges and assents to something ‘already uttered by another person, which thus becomes effectively the party’s own admission’ ” (People v Campney, 94 NY2d 307, 311 [1999], citing 4 Wigmore, Evidence § 1609 at 100 [Chadbourn rev]). Assent can be manifested by silence, because “[a] party’s silence in the face of an accusation, under circumstances that would prompt a reasonable person to protest, is generally considered an admission” (Robert A. Barker & Vincent C. Alexander, Evidence in New York State and Federal Courts § 8:17 [West’s NY Prac Series Nov 2016 Update]; see also People v Koerner, 154 NY 355, 374 [1897] [“If he is silent when he ought to have denied, the presumption of acquiescence arises”]). We have also recognized that “an equivocal or evasive response may similarly be used against [a] party either as an adoptive admission by silence or an express assent” (Campney, 94 NY2d at 316 [Smith, J., dissenting] [internal quotation marks omitted], quoting 2 McCormick, Evidence § 262 at 176 [4th ed 1992]). Here, despite the dissent’s characterization, defendant was not silent in the face of the victim’s accusations. He gave “equivocal or evasive response[s]” {id.).

Though we recognize that evidence of a party’s silence or evasiveness can have “minimal probative significance” and a “substantial” risk of prejudice (People v Conyers, 52 NY2d 454, 458-459 [1981]), our rules of evidence allow that “manifestations made in response or reaction to an accusatory overture, which may be generally inadmissible, may be received into evidence, nevertheless, to establish a relevant demonstrative response of the affected party” (Campney, 94 NY2d at 312 [internal quotation marks omitted]). Further, the “danger” of the potential ambiguity of a party’s silence is not as strongly implicated where, as here, “a verbalized response is involved, not a failure to speak” (id. at 313).

To use a defendant’s silence or evasive response as evidence against the defendant, the People must demonstrate that the defendant heard and understood the assertion, and reasonably would have been expected to deny it (see People v Allen, 300 NY 222, 225 [1949]). As with almost all evidence, “[t]he determination whether a threshold foundation has been established for the admissibility of the declaration or manifested act is made by the trial court, in light of ‘all the facts and circumstances surrounding the incident,’ while the ‘value or effect of this evidence’ is weighed by the jury” (Campney, 94 NY2d at 312, quoting People v Ferrara, 199 NY 414, 430 [1910]). The threshold question of whether a defendant heard and understood another party’s accusations involves a “factual and inferential weighing responsibility” for which “[t]he trial court is the proper forum” (id. at 312-313).

Here, it is clear that the trial court did not abuse its discretion as a matter of law when it made the threshold determination that defendant heard and understood the victim’s accusations against him. The court properly concluded that the content of the conversation, itself, demonstrates that defendant both heard and understood what she was saying, but chose to give evasive and manipulative responses. This view is supported by the context of the call, where, in a domestic violence case, defendant voluntarily contacted the victim in violation of an order of protection in an attempt to influence her to drop the charges against him. Once this foundation was established, it was proper for the call “to be placed before the jury so that the jury might weigh the import, along with its other instructions and responsibilities” (id. at 313).

Though we are mindful of case law suggesting that evidence of a defendant’s silence “may have a disproportionate impact upon the minds of the jurors” (Conyers, 52 NY2d at 459), here, we are satisfied that the jury was fully equipped to assess the significance and dynamics of this phone call. At the outset, during the call, defendant was not silent, but responded to the victim’s accusations. Further, at trial, the jury heard evidence of the rocky relationship between them, and was aware of the allegations of domestic violence. In response, defendant attacked the victim’s credibility and suggested she had a motive to lie. The jury knew that she had problems with alcohol and drugs, that she had mental health issues, and that she had been less than truthful about defendant’s actions before. In this context, the jurors could, in the simple exercise of their common sense, understand the significance of the call.

Finally, defendant argues that it was error for the court to deny his request to redact that portion of the call which references, incorrectly, defendant’s sentencing exposure. However, in this domestic violence case, the mention of a potential prison term was inextricably intertwined with defendant’s purpose of calling the victim to manipulate her to drop the charges against him (“Oh, so you don’t care if I get a year?”). We conclude that the court did not abuse its discretion as a matter of law in declining to redact this portion of the call. And with respect to this issue, as with admission of the call, any potential prejudice was mitigated by the court’s thorough limiting instruction, crafted by defense counsel.

I—I h-f I—I

Defendant and the dissent urge that despite our state evidentiary law’s allowance of adoptive admissions, this call should not have been admitted because it was made while he was incarcerated. Because all of his calls were recorded and monitored by the Department of Correction, a reality he was aware of, he argues that this conversation was akin to silence in the face of interrogation. We decline to adopt this view. As we recently explained, “[djefendant was not induced by any promise, or coerced by the Department, to call [the victim] and make statements detrimental to his defense. . . . and the mere act of recording is no different from an informer sitting mute, not provoking or prompting conversation but merely listening to a statement freely made” (People v Johnson, 27 NY3d 199, 206 [2016]). Notably, the adoptive admission from Campney was made in an interrogation room, in the presence of several police officers (though not in response to any question from an officer). Here, defendant voluntarily contacted and engaged in a conversation with a civilian. That his evasive responses were made during a call while he was incarcerated does not render them the product of an interrogation or its functional equivalent. Under the circumstances of this case, where defendant voluntarily called his accuser in violation of an order of protection to persuade her to drop the charges, the call was not the product of interrogation or its functional equivalent. As always, “the trial judge’s role as gatekeeper remains unchanged and necessary to ensure compliance with constitutional mandates and the usual rules of evidence and criminal procedure” (Johnson, 27 NY3d at 208).

IV.

We have considered defendant’s remaining contentions and find them unpreserved. Accordingly, the Appellate Division order, insofar as appealed from, should be affirmed.

Rivera, J.

(dissenting). I disagree with the majority that defendant, while a pretrial detainee in custody on Rikers Island who was informed both of his Miranda rights and that his telephone calls were routinely recorded by law enforcement, acquiesced to his intimate partner’s accusations during a monitored conversation because he failed to deny her statements. We have long recognized that an accused’s pretrial silence is generally prejudicial and inadmissible. Yet, the trial court below erroneously admitted into evidence, as an adoptive admission by silence, a recording of the Rikers Island telephone call between defendant and the victim. The circumstances of defendant’s detention do not justify an inference of defendant’s acquiescence, and the use of the recording here is nothing more than an improper attempt to allow a jury to infer an admission from the silence of a defendant where such silence has no probative value (see generally People v De George, 73 NY2d 614 [1989]; People v Conyers, 52 NY2d 454 [1981]). The majority’s reasoning is contrary to both our law and principles of fairness because any inference of an admission from an inmate’s silence during these recorded conversations is presumptively unsound, and therefore I dissent.

According to well-established state evidentiary rules, the People generally may not use either in its case-in-chief or for impeachment a defendant’s pretrial silence, meaning a defendant’s failure to speak or to assert affirmatively innocence in the face of inquiry by law enforcement (People v Rutigliano, 261 NY 103, 107 [1933]; Conyers, 52 NY2d at 459). This proscription on the use of silence recognizes that “a defendant’s silence is generally ambiguous and ‘of extremely limited probative worth’” (People v Williams, 25 NY3d 185, 191 [2015], quoting Conyers, 52 NY2d at 458). Silence is especially weak evidence of guilt because a defendant may stand mute in the face of a direct accusation for a number of reasons unrelated to actual criminal culpability (Conyers, 52 NY2d at 458). For example, a defendant may feel no need to respond to what defendant maintains is an unsupported, baseless allegation for which denial would be futile; a defendant may be uncertain what to say and fear any response will be misinterpreted and used against them; a defendant may distrust law enforcement; or, a defendant may simply choose to invoke the constitutional right to remain silent (id.). Yet, “there is a substantial risk that jurors might ‘construe such silence as an admission and . . . draw an unwarranted inference of guilt’ ” (Williams, 25 NY3d at 191, quoting Conyers, 52 NY2d at 458-459). This rule is not predicated on any misconduct by law enforcement, but reflects the commonsense view that, under these circumstances, pretrial silence lacks probative value and the potential for prejudice, as outlined above, outweighs any probative worth of the evidence (Conyers, 52 NY2d at 459).

These same concerns are no less relevant when a defendant is an inmate and well aware that the government is monitoring a recorded conversation with a witness or codefendant, obviating any expectation of privacy while affirming the fear of self-incrimination (see Rutigliano, 261 NY at 105-106, citing Commonwealth v McDermott, 123 Mass 140 [1877], and McCarthy v United States, 25 F2d 298 [6th Cir 1928]). Whether a law enforcement official asks the question, or is merely listening to another’s accusation, a defendant’s silence is ambiguous and prejudicial (see e.g. People v Koerner, 154 NY 355, 375-376 [1897] [remitting for a new trial when the trial court allowed evidence of a witness’s accusation to law enforcement in the presence of the defendant but, under the circumstances, the defendant would not naturally have protested]).

The entirely separate evidentiary doctrine upon which the majority relies, the hearsay exception for adoptive admissions, cannot supplant the prohibition against the admission of a defendant’s pretrial silence. Here, the trial court’s admission of defendant’s post-accusatory, pretrial silence in response to allegations made in a recorded Rikers Island phone call as direct evidence of guilt violated state evidentiary law, and the inquiry ends there.

Nevertheless, even under the adoptive admission exception to hearsay, it was error to admit the recorded conversation.

“[A]ccusatory statements, not denied, may be admitted against the one accused, as admissions, but only when the accusation was ‘fully known and fully understood’ by defendant . . . , and when defendant was ‘at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement by his remaining silent’ ” (People v Allen, 300 NY 222, 225 [1949], quoting Koerner, 154 NY at 374, and People v Conrow, 200 NY 356, 367 [1911]; see also People v Campney, 94 NY2d 307, 311-312 [1999]).

The circumstances must be “such as would properly or naturally call for some action or reply from [persons] similarly situated” (Koerner, 154 NY at 374). Silence is not assent “unless the statements were such as to properly call for a response” (id.). Application of the rule in criminal cases “is to be applied with careful discrimination” as “ ‘[r]eally it is [the] most dangerous evidence’ ” (id.). As the Court explained more than a century ago, this evidence “should always be received with caution, and ought not to be admitted unless the evidence is of direct declarations of a kind which naturally call for contradiction, or some assertion made to a party with respect to [the party’s] rights, in which, by silence, [the party] acquiesces” (id. at 374-375). Where the circumstances are such that ah inference of acquiescence cannot be drawn, as in where the evidence belies just such inference, the statements do not fall within the rule and their admission is error (Conrow, 200 NY at 367, citing People v Kennedy, 164 NY 449 [1900], People v Smith, 172 NY 210 [1902], and People v Cascone, 185 NY 317 [1906]).

Here, the circumstances not only do not establish tacit acquiescence, but they also contradict any such inference. At the time of the telephone call, defendant was a pretrial detainee on Rikers Island, and there is no dispute that he had been advised of his right to remain silent under Miranda v Arizona (384 US 436, 467-468 [1966]). Defendant had access only to telephones monitored by the New York City Department of Correction (DOC). There can be no question that defendant was made aware that his calls were monitored and could be made available to the District Attorney’s Office upon request for use in his prosecution. This Court recently described how Rikers detainees are notified in writing and by audio telecommunications that a call on a Rikers telephone is not private (see People v Johnson, 27 NY3d 199, 203 [2016]). The Inmate Handbook provided to all persons upon admission to Rikers Island states “that calls may be recorded and/or monitored” (id.). The signs posted near the Rikers’ telephones warn: “Inmate telephone conversations are subject to electronic recording and/or monitoring in accordance with [DOC] policy. An inmate’s use of institutional telephones constitutes consent to this recording and/or monitoring” (id.). A detainee using the telephone will hear a recorded advisement that “[t]his [telephone] call may be recorded and monitored” (id.).

Furthermore, attorneys are well aware of the Rikers’ telephone monitoring and use of recorded conversations in prosecutions and for plea bargaining purposes, and advise detainees accordingly. Indeed, the very same District Attorney’s Office that prosecuted defendant and appears in the instant appeal represented in Johnson that defendants should be assumed to understand that they are being monitored by law enforcement: “this type of evidence collection has been so well documented that it blinks reality to assume that defendants are not informed by their attorneys, at arraignments, that their unprivileged conversations will be recorded by DOC and provided to the prosecutor upon request” (brief for respondent in response to amicus curiae submission in People v Johnson, 27 NY3d 199 [2016], at 4).

Given defendant’s awareness of his rights under Miranda and the multiple Rikers’ warnings, an inference that defendant adopted the victim’s accusatory statements is unjustified. A detainee who is informed that he has a right to remain silent before law enforcement and that all telephone statements are recorded and may be used against the detainee by the District Attorney would understand that a “verbalized response”—not silence—is a perilous course, placing any defense at risk. The natural reaction under these circumstances is to maintain silence, not to deny and contradict the accusations (see Conyers, 52 NY2d at 458; see also Williams, 25 NY3d at 191). As the District Attorney in Johnson recognized: “[g]iven the notices that the prisoners signed, read on the wall and heard as they made their phone calls, it is clear that far from taking secretive action to elicit incriminating statements, DOC took overt steps that would actually deter the prisoners from making such statements” (brief for respondent in People v Johnson, 27 NY3d 199 [2016], at 41 [emphasis added]). To avoid the use of incriminating evidence, a defendant should “refrain from discussing the case over the telephone with anyone but [defense counsel]” {id. at 43). The concurring opinion in Johnson also noted that the People’s alternative was “essentially, don’t talk to anyone other than your attorney about anything related to your case unless you want the prosecutor to know about it” (Johnson, 27 NY3d at 211). The District Attorney, and the majority, cannot ignore when a defendant comports with this advice.

The majority’s analysis relies on a misapplication of this Court’s reasoning in People v Campney (94 NY2d 307 [1999]) and recharacterizes in sweeping language the Court’s narrow holding, which was limited to the use of circumstantial evidence to infer a defendant’s adoption of an accomplice’s written confession. Campney neither involved a defendant’s silence, nor sanctioned the routine use of evidence as an adoptive admission where a defendant says nothing. Rather, the case stands for the proposition that circumstantial evidence of a defendant’s conduct and speech may support an inference that the defendant has adopted inculpatory statements {id. at 313). The trial court admitted circumstantial evidence to prove that the defendant had read his brother’s written and signed statement to police confessing to the crime (id. at 312). After the brother gave the police a verbal statement, he asked to speak with defendant and the police left the two alone in an interrogation room for 10-15 minutes (id.). When the police returned, they observed defendant holding the written statement (id.). When an officer asked the brother if he was ready to sign the statement, the brother asked the defendant what he should do, and the defendant responded, “You might as well sign it, you already told them all about what happened” (id.). The Court affirmed the admission of defendant’s exclamation to his brother and the written statement as an adoptive admission (id.). The Court concluded based on the circumstantial evidence that the lower court “had enough before it to deduce that defendant had read or been informed of the contents of the statement, understood its implications, and affirmatively adopted the statement as his own” (id. at 313).

In reaching the holding in Campney, the Court expressly distinguished the jurisprudence on acquiescence by silence because the “defendant explicitly manifest [ed] an awareness of a statement and acceptance of the import of its contents” (id.). The adoptive admission was justified because the dangers highlighted in prior cases and associated with acquiescence by silence are not present “where a verbalized response is involved, not a failure to speak” (id.). Here, however, the trial court admitted the Rikers telephone call based on defendant’s silence, not a verbalized response acknowledging the accusations or suggesting an adoption of the alleged wrongdoing. Thus, Campney does not support the majority’s analysis. Indeed, it reinforces our long-standing recognition that evidence of a defendant’s silence is of no probative value, while being prejudicial and inherently ambiguous.

The trial court’s error in admitting the telephone conversation as a tacit admission was not harmless, particularly because the recording also contained a prior consistent statement of a victim whose credibility was the primary focus of the case. “An error of law may be found harmless where ‘the proof of the defendant’s guilt, without reference to the error, is overwhelming’ and where there is no ‘significant probability . . . that the jury would have acquitted the defendant had it not been for the error’ ” (People v Arafet, 13 NY3d 460, 467 [2009], quoting People v Crimmins, 36 NY2d 230, 241-242 [1975]). An error is typically harmless when the challenged evidence was not the People’s key piece of evidence (see People v Arafet, 13 NY3d 460, 468 [2009]).

Here, where the jury acquitted defendant of certain charges based on the victim’s testimony, the evidence of defendant’s guilt was not overwhelming. The medical evidence placed the injury as having occurred within the three weeks before the victim went to the hospital, which did not contradict defendant’s claim that another boyfriend of the victim caused the injury. However, most damaging to the People’s case was the credibility of the victim, their key witness, who, in the words of the prosecutor, was “a disaster.” Defense counsel impeached the victim by highlighting her prior inconsistent statements, drug addiction, and prior convictions for violence against other intimate partners. In summation, the prosecutor asked the jury not to rely alone on the victim, an obvious concession to the weakness of the People’s case. “I know [the victim] is a disaster. I know that. However, I am not asking you to just rely on her. She has a lot of issues but I’m not just asking you to rely on her in this case.” The prosecutor, recognizing that a defendant’s silence when accused of wrongdoing is powerful, expressly advocated that the jury rely on the defendant’s failure to speak against the accusation as proof of his guilt. The prosecutor further argued that defendant’s silence while being recorded established his guilt because anyone would have spoken out under those circumstances:

“[E]ach inmate is put on notice that their calls are recorded. There are signs posted near all of the telephones that say they are recorded. If you knew that you were being recorded and you were innocent, wouldn’t that be all the more reason for you to deny it? . . .
“He couldn’t deny it to her because she was there. Because she was there when he did that to her.”

Thus, although the majority maintains that defendant’s awareness that his calls were monitored is irrevelant (majority op at 692-693), the prosecutor used this fact persuasively before the jury.

This was a case of intimate partner violence with no witness to the assault, so the case turned on who the jury believed (e.g. People v Delamota, 18 NY3d 107, 116 [2011]). Where the victim’s credibility was suspect, the medical evidence established a three-week window for the assault, and the prosecutor’s summation advocated guilt based on defendant’s silence, the proof of guilt was not overwhelming and a significant probability exists that the jury would have acquitted the defendant had the court not erroneously admitted evidence of the telephone call—a call which contained a prior consistent statement used to bolster the victim’s credibility. I would reverse the Appellate Division’s order affirming defendant’s conviction.

As this case illustrates, it is inherently unfair to inform a Rikers Island detainee that telephone calls are being monitored by the government and may be used as evidence against the detainee by the prosecution, only to penalize the detainee who elects not to speak during a recorded telephone call. Now, despite this Court’s continual acknowledgment of the limited probative value of a defendant’s silence in these circumstances, and the inherent prejudice that may result from admitting evidence of a defendant’s silence, the majority penalizes defendant for choosing not to speak, a conclusion not supported by our law or notions of fairness.

I dissent.

Judges Stein, Fahey and Garcia concur; Judge Rivera dissents in an opinion in which Chief Judge DiFiore concurs; Judge Wilson taking no part.

Order, insofar as appealed from, affirmed.

       The dissent interprets our holding in Campney too narrowly. By stating that “[a]pplying standard principles, we conclude that the trial court appropriately permitted the jury to consider whether defendant adopted his accomplice brother’s written statement” (Campney, 94 NY2d at 310), we did not hold that these “standard principles” should be limited solely to a case with the particular facts of a defendant adopting his accomplice brother’s written statement, as the dissent here suggests. Instead, we apply these standard evidentiary principles to the facts before us, as we did in Campney, and conclude that the trial court similarly “appropriately permitted the jury to consider” whether defendant adopted the victim’s statement.

       The majority seems to misapprehend our case law on this point by suggesting that adoptive admissions by silence should be treated differently than adoptive admissions by elusive non-responses (majority op at 690-691). Our court has long held that the touchstone of the adoptive admission by silence jurisprudence is the “failure to deny, or to make immediate and positive denials” when faced with accusation (see People v Allen, 300 NY 222, 225 [1949]; see also People v Williams, 25 NY3d 185, 189, 193-194 [2015] [holding that it was error for the prosecutor to invite jurors to consider defendant’s failure to deny an accusation as evidence of guilt]). Accordingly, the People sought admission of this evidence as an adoptive admission by silence and the trial court admitted it as such. Therefore, despite the majority’s assertion to the contrary (majority op at 690), defendant’s elusive or non sequitur responses to the victim’s accusations constitute “silence.”


source: Caselaw Access Project

author: Stein, J.

license: Public Domain

text:
    [71 NE3d 941, 49 NYS3d 353]
    The People of the State of New York, Appellant, v Hao Lin, Respondent.
    Argued January 11, 2017;
    decided February 16, 2017

      POINTS OF COUNSEL

      Eric Gonzalez, Acting District Attorney, Brooklyn {Anthea H. Bruffee and Leonard Joblove of counsel), for appellant.

      Seymour W. James, Jr., The Legal Aid Society, New York City (Denise Fabiano of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

In this appeal challenging convictions for driving while intoxicated, defendant argues that the Confrontation Clause was violated where the police officer who testified at trial regarding defendant’s breath test directly observed the test, but did not personally administer it. Because the officer testified based on his own observations and conclusions, rather than as a surrogate for his partner who actually administered the test, and none of the nontestifying officer’s hearsay statements were admitted against defendant, we hold that defendant’s rights under the Confrontation Clause were not violated.

L

Defendant was arrested for driving while intoxicated (DWI) and other traffic offenses. He was taken to the police station, where Officers Harriman and Mercado—who were both experienced breath analysis operators trained on the Intoxi-lyzer 5000—remained in defendant’s presence for the entire breath-testing procedure. Harriman administered the breath test to defendant, progressing through the 13 steps on the police department checklist and completing the forms related to the test procedure. Mercado personally observed the performance of these tasks, and operated the video recorder that memorialized defendant’s test.

On defendant’s first two attempts to provide a breath sample, he did not blow properly, so the machine emitted an error sound, would not give a result, and had to be reset. On the third attempt, defendant provided a proper sample. Mercado testified that he knew it was proper because the machine did not make the error sound, and it printed out the result, which was a blood alcohol content of .25 of one percentum. Mercado further testified that a person cannot alter a reading in the machine once someone blows into it.

Prior to defendant’s trial, Harriman retired from the New York Police Department and moved out of state. Therefore, Mercado testified at trial regarding the breath test procedure and results, including his opinion that defendant was intoxicated. The 13-step checklist completed by Harriman was not admitted into evidence. As relevant here, the jury convicted defendant of two counts of DWI. Appellate Term reversed and remitted for a new trial on those counts (46 Mise 3d 20 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), holding that defendant’s Confrontation Clause rights were violated. That court so concluded because Mercado did not personally observe whether the machine display of the simulator solution temperature was within the proper range, which was an essential part of the 13-step operational checklist; the court also noted that the record did not indicate whether the machine will perform if the temperature is outside the proper range. A Judge of this Court granted the People leave to appeal (25 NY3d 1202 [2015]), and we now reverse.

IL

In general, the Confrontation Clause of the Sixth Amendment renders inadmissible the testimony of a witness against a criminal defendant “unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination” (Melendez-Diaz v Massachusetts, 557 US 305, 309 [2009]; see People v Pealer, 20 NY3d 447, 453 [2013], cert denied 571 US —, 134 S Ct 105 [2013]). In particular, the Confrontation Clause is concerned with admission of testimonial statements made by declarants who are unavailable for cross-examination (see Williams v Illinois, 567 US —, —, 132 S Ct 2221, 2238 [2012]). Many of the recent Confrontation Clause decisions of the United States Supreme Court and of this Court concern documents such as affidavits, certifications and forensic reports that were introduced without any live testimony, or through the testimony of a person who was familiar with the testing procedure in general, but who lacked any direct connection to the particular defendant’s testing (see Bullcoming v New Mexico, 564 US 647 [2011]; Melendez-Diaz v Massachusetts, 557 US 305 [2009]; People v John, 27 NY3d 294 [2016]). While the present case is factually distinguishable, those cases are instructive.

In Bullcoming v New Mexico, the United States Supreme Court determined that the Confrontation Clause was violated by the introduction of a blood test report through the testimony of an analyst who was familiar with the general testing procedure, but “who had neither observed nor reviewed” the analysis of the defendant’s blood (564 US at 655). The Court held that information regarding test analysis and results is admissible only through, or when accompanied by, live testimony of someone familiar with the particular test and process actually applied to the defendant’s sample (see id. at 661). The Court reasoned that surrogate testimony of an individual who was not involved in the test at issue is insufficient because it cannot “convey what [the testing analyst] knew or observed about . . . the particular test and testing process he [or she] employed” {id. at 661), and cannot “expose any lapses or lies” by the testing analyst {id. at 662). As the concurrence in that case acknowledged, “[i]t would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results” {id. at 673 [Sotomayor, J., concurring] [emphasis added]).

In People v John, this Court ruled similarly—under circumstances indistinguishable from those in Bullcoming—where a DNA lab report was admitted into evidence “without a testifying analyst who performed, witnessed or supervised any portion of the testing” (27 NY3d at 308). We contrasted the facts in John with those in People v Brown (13 NY3d 332 [2009]), wherein we discerned no Confrontation Clause violation because the testifying witness had supervised the generation of a DNA profile, and personally examined and independently interpreted the data (see John, 27 NY3d at 310, citing Brown, 13 NY3d at 337, 340). While we held in John that it was not necessary for every person who came into contact with the evidence to appear at trial, we required that “at least one analyst with the requisite personal knowledge must testify” (John, 27 NY3d at 313). Thus, we concluded that a defendant’s Confrontation Clause rights would be protected as long as the People presented testimony of “a single analyst, particularly the one who performed, witnessed or supervised the generation of the critical numerical DNA profile” (id. at 314 [emphasis added]).

Neither the United States Supreme Court nor this Court has required the primary analyst to testify in every case in order to protect a defendant’s confrontation rights. Indeed, both courts have commented that the Confrontation Clause is satisfied if the trial witness is a trained analyst who supervised, witnessed or observed the testing, even without having personally conducted it (see Bullcoming, 564 US at 666; id. at 673 [Sotomayor, J., concurring]; John, 27 NY3d at 304, 314). This is so because someone in such a position would be able to testify not only about the typical testing protocol, but also about “the particular test and testing process” used in that defendant’s case (Bullcoming, 564 US at 661), thereby permitting the defendant to adequately cross-examine the witness.

HH HH l—I

Applying the rules from those cases, we conclude that no Confrontation Clause violation occurred here. Mercado was personally present during the entire time that Harriman and defendant were together. Mercado testified that he was trained to operate the machine, was very familiar with it, and could tell whether it was working properly based on Harriman’s actions inputting information and on sounds made by the machine, itself. The Appellate Term specifically stated that, even though Mercado did not personally operate the machine for defendant’s test, he was a certified and experienced operator of the machine and was able to determine whether it was successfully self-calibrating by observing Harriman’s actions and listening to the machine (see 46 Misc 3d at 24-25). That court noted that Mercado testified that he heard and saw nothing to indicate that defendant’s third test was unsuccessful (see id.). Based on Mercado’s testimony that he saw the machine print out the test results, which testimony the Appellate Term credited (see id. at 25), he was as capable as Harriman of reading the printout and introducing it in evidence, regardless of who operated the machine. That printout was generated by the machine based on defendant’s breath sample, arid was not a statement by Harriman (compare Bullcoming, 564 US at 660).

Defendant argues that Mercado did not observe him for the requisite 20-minute period before the test—one of the essential 13 steps of the checklist. While Harriman was responsible for completing the paperwork and was listed as the person who observed defendant, Mercado testified that he was also present with defendant for the entire testing procedure, including the pre-test observation period. According to Mercado, he knew, based on what he saw and heard, that defendant did not engage in any activity during that time that could have skewed the test results. Indeed, the Appellate Term noted that Mercado “testified as to defendant’s condition during the requisite observation period prior to the test” (see 46 Misc 3d at 24).

The only step in the testing process that the Appellate Term found Mercado did not personally perform or observe, and the sole stated basis for that court finding a Confrontation Clause violation, was verification of the simulator solution temperature as displayed on the machine. Inasmuch as the written 13-step checklist completed by Harriman was not admitted into evidence, no testimonial statement by a nontestifying witness concerning the temperature—or any aspect of the testing procedure—was used against defendant. Thus, any argument as to Mercado’s failure to observe the temperature reading would merely relate to whether there was a proper foundation for his testimony, which would not implicate a Confrontation Clause violation (see Williams, 567 US at —, 132 S Ct at 2238). However, to the extent that the Appellate Term based its decision on the failure of an “essential” step in the testing procedure, the trial record contradicts that court’s conclusion that there was an absence of evidence that the machine will shut itself down and fail to perform the test if the temperature is outside the proper range (see 46 Misc 3d at 25). Mercado testified that he knew from operating the machine so many times that it makes an “error sound” if there is a problem, and will not give a result if an error occurs. Additionally, the video recording of the testing process supports Mercado’s testimony that no error sound was audible when the machine was verifying the temperature of the simulator solution (as opposed to when defendant failed to blow properly on his first two attempts, at which times a tone was audible and Harriman had to reset the machine). The video also shows that the machine continued to operate and produced a result. The record, therefore, was sufficient to allow the jury to find that the temperature of the simulator solution was within the proper range.

IV.

In sum, Mercado observed Harriman perform all of the steps on the checklist and saw the breathalyzer machine print out the results. Based upon his personal observations, Mercado—as a trained and certified operator who was present for the entire testing protocol—was a suitable witness to testify about the testing procedure and results in defendant’s test. Inasmuch as Mercado testified as to his own observations, not as a surrogate for Harriman, there was no Confrontation Clause violation. Any alleged irregularities concerning the testing procedure would relate to the weight of Mercado’s testimony, not its admissibility (see e.g. People v Boscic, 15 NY3d 494, 500 [2010]). Defendant’s remaining argument lacks merit.

Accordingly, the order of the Appellate Term should be reversed and the case remitted to that court for consideration of the facts and issues that were raised but not determined on the appeal to that court.

Chief Judge DiFiore and Judges Rivera, Abdus-Saeaam, Fa-hey and Garcia concur; Judge Wilson taking no part.

Order reversed and case remitted to the Appellate Term, Second Department, Second, Eleventh and Thirteenth Judicial Districts, for consideration of the facts and issues raised but not determined on the appeal to that court.


author: Chief Judge DiFiore.

text:
    [71 NE3d 950, 49 NYS3d 362]
    Tara N.P., Appellant, v Western Suffolk Board of Cooperative Educational Services, Also Known as Western Suffolk B.O.C.E.S., Defendant, and County of Suffolk et al., Respondents, et al., Defendants.
    Argued January 10, 2017;
    decided February 16, 2017

      POINTS OF COUNSEL

      Meyerson & Levine, LLP, Franklin Square (Mary Ellen O’Brien and Michael C. Levine of counsel), for appellant.

      Dennis M. Brown, County Attorney, Hauppauge (Christopher A. Jeffreys of counsel), for respondents.
   OPINION OF THE COURT

Chief Judge DiFiore.

On this appeal, we are asked to determine whether Suffolk County can be held liable for damages resulting from the sexual assault of plaintiff by a worker at a County-owned facility where plaintiff took adult education classes. The worker, defendant Larry Smith, had been referred for a potential position with the lessee of the facility through the County’s “welfare to work” program. We hold that where, as here, the County’s referral of defendant Smith was within the County’s governmental capacity and the County did not assume a special duty to plaintiff, summary judgment was properly granted to the County. We therefore affirm.

Plaintiff Tara N.P. was sexually assaulted while attending classes conducted by Western Suffolk Board of Cooperative Educational Services (BOCES) at a facility operated by North Amityville Community Economic Council (NACEC). NACEC leased the facility where classes were held from Suffolk County for a nominal amount. Additionally, NACEC agreed that the facility would be a work site for the Suffolk Works Employment Program (SWEP), a “welfare to work” program operated by Suffolk County Department of Labor (DOL). NACEC agreed to accept referrals of individuals who did not have criminal records. The DOL referred defendant Smith to NACEC for a potential position as a maintenance worker notwithstanding that it knew Smith was a level three sex offender. NACEC accepted the referral of Smith and months later, while working at NACEC’s facility, Smith sexually assaulted plaintiff in an empty classroom.

Plaintiff brought this action to recover damages for personal injuries against Suffolk County, the Suffolk County Department of Social Services, and the DOL (hereinafter, collectively the County), as well as Smith, NACEC, BOCES, and others. In addition to other relief, the County moved for summary judgment dismissing the complaint insofar as asserted against it on the grounds that it did not owe plaintiff a duty of care and, in any event, was entitled to absolute governmental immunity for discretionary acts. Supreme Court, among other things, denied the County’s motion for summary judgment (2012 NY Slip Op 32288[U] [Sup Ct, Suffolk County 2012]). The Appellate Division, as relevant here, reversed that portion of Supreme Court’s order and granted the County’s motion for summary judgment on the ground of governmental immunity, holding that the County was acting in a governmental capacity and did not voluntarily assume a special duty to plaintiff. As to plaintiff’s argument that the County should be liable because it acted in a proprietary capacity as a landlord, the Appellate Division held that the “essential act complained of . . . that the County negligently referred Smith to NACEC . . . was a governmental act” and, therefore, plaintiff could not “avoid the attachment of governmental immunity” (131 AD3d 517, 520 [2d Dept 2015]). We granted plaintiff leave to appeal (26 NY3d 914 [2015]).

Plaintiff argues that the County’s negligence arose out of its proprietary function as a landlord, and that the County’s failure to provide minimal security or a warning to protect those on the premises against foreseeable harm raises issues of fact that preclude summary judgment. In the alternative, plaintiff argues that, assuming the County is found to have acted in a governmental capacity, the County had a special duty to plaintiff and the act of referring Smith to NACEC was not discretionary.

Under our well-established case law, plaintiff’s arguments are without merit. As we have previously explained, “[w]hen a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” (Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]). “A government entity performs a purely proprietary role when its ‘activities essentially substitute for or supplement traditionally private enterprises’ ” (id., quoting Sebastian v State of New York, 93 NY2d 790, 793 [1999]). In that instance, the government entity is subject to suit under the ordinary rules of negligence. In contrast, acts “ ‘undertaken for the protection and safety of the public pursuant to the general police powers’ ” are governmental in nature (id., quoting Sebastian, 93 NY2d at 793). “Because this dichotomy is easier to state than to apply in some factual scenarios, the determination categorizing the conduct of a municipality may present a close question” (id.). For that reason, courts must “examine ‘the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurredV (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 447 [2011] [citations omitted and emphasis added]).

In this case, the specific act or omission that caused plaintiff’s injury was the County’s referral of Smith to NACEC through the County’s SWEP program, a referral made in spite of NACEC’s caveat that it would not accept candidates with a criminal record. The administration of SWEP by the DOL was quintessentially a governmental role. The County’s conduct in referring Smith was undertaken solely in connection with its administration of that program and was part of the County’s fundamental governmental activity. Therefore, we hold that the County was acting in its governmental capacity when it referred Smith to NACEC.

Plaintiff’s claim that the County was acting in its proprietary capacity as a landlord is unpersuasive. Again, the specific act or omission out of which the injury arose was the County’s referral of Smith to NACEC. This case is distinguishable from Miller v State of New York (62 NY2d 506 [1984]), where we held that the State could be liable for damages in its proprietary capacity as a landlord for failing to keep outer doors locked in a State-operated college dormitory where “there was a reasonably foreseeable likelihood of criminal intrusion into the building” {Miller, 62 NY2d at 508-509). Here, it is not the County’s duty as a landlord to maintain basic security that is implicated; rather, it is the County’s failure to properly adhere to the terms that NACEC requested when the County referred Smith for a potential position at NACEC’s work site.

Given that the County was exercising a governmental function in referring Smith to NACEC, “the next inquiry focuses on [whether] the municipality owed a ‘special duty’ to the injured party” (Applewhite, 21 NY3d at 426; see also Coleson v City of New York, 24 NY3d 476, 481 [2014]). As we have explained, “[t]he core principle is that to ‘sustain liability against a municipality, the duty breached must be more than that owed the public generally’ ” (Applewhite, 21 NY3d at 426 [citations omitted]).

“[A] special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition” {id.).

The burden of demonstrating such a special duty lies with the plaintiff. If the “plaintiff fails to meet this burden, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity” {id.).

Of the three ways a plaintiff may show the existence of a special duty, situations one and three have no relevance to this case and only the second is at issue here—namely, whether the County “voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally” {id.).

In Cuffy v City of New York (69 NY2d 255 [1987]), we articulated four elements of this special relationship:

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” {id. at 260 [emphasis added]).

Notably, all four elements must be present for a special duty to attach (Applewhite, 21 NY3d at 431). Here, the absence of the last two elements—direct contact and justifiable reliance—is fatal to plaintiff’s claim. There is no view of the evidence that could allow one to conclude that the County voluntarily assumed a special duty to plaintiff. Even if the County promised that it would not refer anyone with a criminal background, that promise would have been made only to NACEC and there is no evidence that plaintiff ever had any knowledge of NACEC’s request. In addition, while “the direct contact requirement has not been applied in an overly rigid manner” (Cuffy, 69 NY2d at 261), it is undisputed that there was no direct contact between plaintiff and the County. The County referred Smith to NACEC and plaintiff herself never communicated directly with the County or the DOL. Indeed, “[o]ur cases have accepted direct contact... by someone other than the plaintiff as sufficient to create a special relationship only where the person making the contact was acting on behalf of his or her immediate family” (Laratro v City of New York, 8 NY3d 79, 84 [2006]), which was not the case here.

Likewise, in the absence of direct contact between plaintiff and the County, the “critical” element of justifiable reliance (Cuffy, 69 NY2d at 261) cannot be met.

“[A]t the heart of most of these ‘special duty’ cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him either to relax his own vigilance or to forego other available avenues of protection” {id.).

Here, however, plaintiff has not demonstrated—and cannot demonstrate—such reliance (see Laratro, 8 NY3d at 84). To find that NACEC’s contacts with the County could be imputed to plaintiff to satisfy the direct contact and reliance elements would eviscerate these elements entirely and “would unacceptably dilute the general rule of municipal nonliability” {id.). Accordingly, plaintiff raises no triable issue of fact as to a special duty running to her from the County.

Because we have determined that there is no triable issue of fact as to the existence of a special duty, we need not address whether the County’s referral of Smith was ministerial or discretionary under the “governmental function immunity defense” (see Valdez v City of New York, 18 NY3d 69, 75 [2011]; see also Haddock v City of New York, 75 NY2d 478 [1990]). Indeed, ministerial actions may be a basis for liability, “but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” (McLean v City of New York, 12 NY3d 194, 203 [2009]). Even if we were to assume in plaintiff’s favor that the referral of Smith was ministerial, she cannot recover against the County in the absence of a special duty.

As we have observed in some prior cases, this unfortunately is “a case in which a failure by government to do its job has caused harm” (id. at 197). Nonetheless, our well-settled rule of law mandates our holding that the County is immune from liability to this plaintiff. Indeed, the public policy considerations that require our application of the special duty requirement are underscored when the governmental act at issue involves beneficial services, such as the “welfare to work” program involved here.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

Judges Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur; Judge Wilson taking no part.

Order, insofar as appealed from, affirmed, with costs.

       Notably, we did not address the question of special duty in Haddock and instead focused exclusively on whether the City’s retention of a participant in the Work Relief Employment Program as a Parks Department utility worker was ministerial or discretionary.


author: Rivera, J.

text:
    [71 NE3d 932, 49 NYS3d 344]
    The People of the State of New York, Respondent, v Kevin Fisher, Appellant.
    Argued January 12, 2017;
    decided February 14, 2017

      POINTS OF COUNSEL

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Matthew A. Wasserman of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Luis Morales and Alan Gadlin of counsel), for respondent.
   OPINION OF THE COURT

Rivera, J.

Defendant Kevin Fisher challenges the denial of his motion to withdraw his guilty plea to one count of hindering prosecution in the second degree (Penal Law § 205.60). The courts below properly rejected defendant’s claims that his plea is constitutionally infirm and that his codefendant’s acquittal of the underlying felony renders defendant innocent. Neither claim is supported by existing precedent, and his innocence theory is counter to this Court’s holdings in People v Chico (90 NY2d 585 [1997]), People v O’Toole (22 NY3d 335 [2013]), and People v Berkowitz (50 NY2d 333 [1980]). Therefore, the Appellate Division order affirming the judgment should be affirmed.

L

Defendant was charged with hindering prosecution in the first degree and criminal possession of a weapon in the third degree for providing and hiding a gun used by codefendant Clovis Roche in a fatal shooting. On the eve of trial, defendant pleaded guilty to the lesser included offense of hindering prosecution in the second degree, in satisfaction of the indictment. At the plea colloquy, he admitted under oath that he rendered criminal assistance to Roche, who had committed murder in the second degree, and that defendant knew and believed Roche had engaged in conduct constituting second-degree murder. As part of his plea, defendant waived his right to appeal.

Roche proceeded to trial. The People’s sole eyewitness was the brother of the victim, who testified that he was at his brother’s apartment with several other people when a dispute arose and Roche shot his brother. The brother’s assertion that he told the police that Roche was the shooter contradicted the trial testimony of a detective who said the brother told her that he had not seen the shooting, but was consistent with later statements the brother made to other police officers, the prosecutor, and the grand jury.

The evening after the brother testified, the prosecutor discovered handwritten notes of his pretrial interview with the brother. The notes included “blurbs” indicating that the brother was “unsure,” “saw punch thrown,” Roche “starts pulling out gun,” and the victim “grabbed gun” and “was punching” Roche. Roche’s defense counsel conceded the notes should have been disclosed under People v Rosario (9 NY2d 286, 289 [1961]), not Brady v Maryland (373 US 83, 87 [1963]), and the court permitted cross-examination on the content of the prosecutor’s notes. Thereafter, defense counsel attempted to impeach the brother with the notes and referred to them in summation as evidence that the brother was lying on the stand and that he had not seen the shooting.

Roche testified in his defense that he never intended to shoot the victim, and only displayed the gun to persuade him and the others to leave the apartment. According to Roche, the victim grabbed for the gun, the two men fell back into the bedroom, and the gun accidently went off twice while they struggled. Although the gun was never recovered, Roche admitted that he got it from defendant. Despite Roche’s denial of any intent to use the gun, the trial court granted defense counsel’s request to charge on self-defense.

The jury acquitted Roche of the felony charges of murder in the second degree and criminal possession of a weapon in the second degree, but convicted him of the misdemeanor count of criminal possession of a weapon in the fourth degree.

After Roche’s acquittal on the felony counts, and prior to defendant’s sentencing, defendant moved to withdraw his plea pursuant to CPL 220.60 (3). The court denied the motion and sentenced defendant in accordance with the plea agreement. The Appellate Division affirmed (People v Fisher, 119 AD3d 426 [1st Dept 2014]). A Judge of this Court granted leave to appeal (People v Fisher, 26 NY3d 1008 [2015]).

IL

A determination on a defendant’s motion to withdraw a plea prior to sentencing is left to the sound discretion of the court (CPL 220.60 [3]). We review the denial of such a motion for abuse of discretion as a matter of law (People v Manor, 27 NY3d 1012, 1013-1014 [2016]). Here, defendant challenges the trial court’s denial of his motion to withdraw his plea on two grounds: (1) the plea was not voluntary, knowing and intelligent because he entered the plea without benefit of the prosecutor’s notes, which are exculpatory and would have materially affected defendant’s decision to plead guilty; and (2) defendant is innocent of hindering prosecution due to Roche’s acquittal of the underlying felony of second-degree murder. We conclude that the notes are not exculpatory and, regardless, would not have materially affected defendant’s decision to plead. Further, the acquittal of Roche does not render defendant’s admission of guilt a legal nullity. Therefore, the trial court did not abuse its discretion in denying defendant’s motion.

A.

Under well-established federal and state constitutional principles, suppression of “favorable evidence in the People’s possession which is material to either guilt or punishment” is a violation of a defendant’s federal and state due process rights (People v Bryce, 88 NY2d 124, 128 [1996], citing Brady, 373 US at 87, and People v Vilardi, 76 NY2d 67, 73 [1990]). To establish that the People violated these rights, “defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” (People v Fuentes, 12 NY3d 259, 263 [2009]). The Appellate Division Departments and the United States Court of Appeals for the Second Circuit have held that in cases where a defendant pleads guilty and the People have suppressed exculpatory evidence, the defendant must establish that the evidence would have materially affected the decision to plead rather than go to trial (see People v Martin, 240 AD2d 5, 9 [1st Dept 1998]; People v Armer, 119 AD2d 930 [3d Dept 1986]; Tate v Wood, 963 F2d 20, 24 [2d Cir 1992]).

Here, the notes do not refer to defendant’s acts or intention, and, as such, they do not directly or expressly provide evidence favorable to defendant by negating or placing in doubt his criminal acts. Nor do the notes support a theory that Roche acted in self-defense, as defendant claims. To the extent the notes reveal the brother told the prosecutor he saw Roche pull out a gun and then saw the victim grab it, the notes are inculpatory as to Roche. Specifically, the notes indicate that Roche was pulling the gun from his belt and not merely displaying it as he testified at trial. The notes also made it appear as if the victim acted in self-defense and not the other way around. Given that the notes are not favorable to defendant by exculpating him or Roche, we reject defendant’s contention that the notes would have materially affected his decision to plead guilty.

B.

Defendant’s alternative argument—that the People cannot establish a necessary element of hindering prosecution—is partially foreclosed by his guilty plea to the extent he challenges the sufficiency of the evidence in his case (People v Plunkett, 19 NY3d 400, 405 [2012]). However, we may consider his claim that Roche’s acquittal renders defendant innocent of the crime to which he pleaded guilty, along with his argument that the People are collaterally estopped from further prosecution of defendant (People v Taylor, 65 NY2d 1, 5 [1985]; People v Dixon, 29 NY2d 55, 57 [1971]).

A defendant is guilty of hindering prosecution in the second degree when the defendant “renders criminal assistance to a person who has committed a class B or class C felony” (Penal Law § 205.60). In People v Chico (90 NY2d 585, 588 [1997]), a case involving first-degree hindering prosecution, the Court held that “the People must prove that the underlying class A felony was committed,” but made clear that “the statute does not require proof that the assisted person was ever arrested or convicted.” Other than the class of the underlying felony and the fact that first-degree hindering prosecution has the added element that the defendant knew or believed that the assisted person engaged in the conduct constituting a class A felony, first- and second-degree hindering prosecution share the same elements. Accordingly, the rules set forth in Chico apply equally to the lesser included offense.

Contrary to defendant’s suggestion, the People may satisfy their burden to establish defendant’s guilt beyond a reasonable doubt by relying on the defendant’s admissions that the assisted person committed the crime. Indeed, Chico specifically permits such evidence, as the Court held the defendant’s eyewitness account that the assisted person stalked and fatally shot the victim was evidence against the defendant establishing the underlying felony of intentional murder {id. at 589). Similarly, the elements of second-degree hindering prosecution were established at defendant’s plea allocution when he admitted rendering criminal assistance to Roche, who defendant further admitted had committed second-degree murder. As in Chico, defendant’s statements established the commission of the underlying felony {see id.).

Defendant argues that the court abused its discretion in denying his motion to withdraw his guilty plea because his guilt is inextricably tied to Roche’s criminal liability, rendering him innocent if Roche is acquitted. Defendant’s argument is at odds with the holding in Chico that a defendant’s criminal culpability is not dependent on the assisted person’s arrest or conviction {id. at 588). Further, defendant’s argument is based on a flawed legal premise because “an acquittal is only a finding of reasonable doubt, not a finding that [the person tried] is in fact innocent” {O’Toole, 22 NY3d at 338).

In that vein, Roche’s acquittal of the murder and conviction of weapon possession suggests the jury determined there was reasonable doubt as to whether he harbored the requisite intent to cause the victim’s death or acted in self-defense. Of course, the jury rendered that verdict without the benefit of defendant’s plea and his admission that Roche committed murder. The jury may also have exhibited “mercy” in Roche’s case (id.), or engaged in unsanctioned jury nullification (People v Goetz, 73 NY2d 751, 752 [1988] [“there is nothing to prevent a petit jury from acquitting although finding that the prosecution has proven its case,” although it is “not a legally sanctioned function of the jury and should not be encouraged by the court”]).

Defendant’s position is further undermined by cases involving conspiracy, criminal facilitation, and accomplice liability, which hold that criminality of one defendant is not required to establish criminality of another (see Berkowitz, 50 NY2d at 343; People v Oleksowicz, 101 AD2d 119 [2d Dept 1984]; People v Rasero, 62 AD2d 845, 851 [1st Dept 1978]). Defendant seeks to distinguish these cases on the ground that the statutes for those crimes expressly provide that acquittal is no defense (Penal Law §§ 105.30, 115.10, 20.05). We are unpersuaded. In Chico this Court made plain that the assisted person’s conviction is not a required element of the crime (Chico, 90 NY2d at 588). As with the unilateral theory of criminal liability for conspiracy, the legal status of the assisted person—the principal in this case—is immaterial to defendant’s criminal liability for hindering prosecution (People v Schwimmer, 47 NY2d 1004, 1005 [1979]).

Fundamentally, the reasoning of Berkowitz for permitting prosecution of one defendant when a coconspirator is acquitted applies just as forcefully to cases of hindering prosecution:

“In most cases there will be significant disparities in the proof which is available against each of two defendants. . . . Hence, the acquittal of one of two defendants . . . does not mean that the People will necessarily be unable to prove the guilt of the other defendant beyond a reasonable doubt” (id. at 346).

Defendant’s supporting assertion, that collateral estoppel bars the People’s continued prosecution of a defendant following the assisted person’s acquittal, is based on a misapplication of the doctrine. Collateral estoppel applies in a criminal case to prevent one party from “relitigat[ing] issues which have already been decided against” that party (id. at 344, quoting People v Lo Cicero, 14 NY2d 374, 380 [1964]). Assuming without deciding there was an identity of the parties (see Berkowitz, 50 NY2d at 345), collateral estoppel could not apply because defendant pleaded guilty prior to Roche’s acquittal, meaning that no previously determined facts were reliti-gated at defendant’s sentencing.

C.

The logical basis for rejecting defendant’s proposed rule—an assisted person’s acquittal forecloses any finding of a defendant’s criminal liability for hindering prosecution—is rooted in the nature of the crime itself. The intended goal of hindering prosecution is the assisted person’s evasion of criminal liability for the underlying felony. The more effective a defendant’s attempts to obstruct law enforcement, the more likely the assisted person will escape prosecution or be acquitted. Defendant’s rule would have the perverse result of treating as innocent a defendant who stymies an investigation, hides evidence—as in this case—or otherwise sabotages the prosecution, because those efforts lead to the assisted person’s acquittal. Such an outcome would undermine the purpose of the statute: to hold accountable those who successfully or unsuccessfully interfere and to discourage such conduct (see Penal Law § 205.50). Additionally, in cases where the assisted person is being prosecuted, a defendant charged with hindering prosecution could plead guilty, with the intent of withdrawing the plea if the assisted person is acquitted. This is in contradiction of this Court’s rule that, whenever possible, a guilty plea is treated as final (People v Ramos, 63 NY2d 640, 643 [1984]; see also People v Thomas, 53 NY2d 338, 344-345 [1981]).

We recognize the concerns implicit in defendant’s argument that permitting his guilty plea to stand appears to grant the People two bites at the apple to establish the commission of the underlying felony. However, we do not view defendant’s conviction based on his voluntary plea as relaxing the People’s heavy burden to establish guilt beyond a reasonable doubt for every person accused of a crime (People v Johnson, 94 NY2d 600, 610 [2000]). The result might be different if a defendant asserted a supported claim of actual innocence in that he did not provide assistance, or if a defendant established that the assisted person was wrongly accused of a felony committed by someone else (see People v McKennion, 27 NY2d 671 [1970] [defendant who claims innocence before sentencing after pleading guilty entitled to hearing or withdrawal of plea if there is an assertion with factual support that plea was based on misunderstanding or mistake]; cf. Dixon, 29 NY2d at 56 [court has discretion not to withdraw guilty plea made knowingly and tactically when defendant makes unsupported claim of innocence before sentencing]). In both those situations the defendant would not have hindered the prosecution of a felony committed by the assisted person. Neither case is presented here, and defendant has never claimed that he did not take the gun from the scene of a homicide he had just observed Roche commit.

I—I HH 1—I

A plea “marks the end of a criminal case, not a gateway to further litigation” (Plunkett, 19 NY3d at 405). As a consequence, “a motion to withdraw a guilty plea will not be granted merely for the asking” (People v Alexander, 97 NY2d 482, 485 [2002]). “A defendant is not entitled to withdraw his guilty plea based on a subsequent unsupported claim of innocence, where the guilty plea was voluntarily made with the advice of counsel following an appraisal of all the relevant factors,” which can include the strength of the evidence against defendant and hope of a reduced charge and sentence (Dixon, 29 NY2d at 57). We conclude the court neither abused its discretion in denying defendant’s motion to withdraw his plea, nor improperly rejected defendant’s attempt to relitigate his guilt. Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge DiFiore and Judges Abdus-Salaam, Stein, Fahey and Garcia concur; Judge Wilson taking no part.

Order affirmed.

        Rosario disclosures, codified by CPL 240.45, include any statements made by a witness who will testify at trial, while Brady disclosures consist of any exculpatory evidence or information favorable to defendant, which is material to guilt or punishment.


author: Abdus-Salaam, J.

text:
    [71 NE3d 930, 49 NYS3d 342]
    The People of the State of New York, Respondent, v Michael Pena, Appellant.
    Argued January 12, 2017;
    decided February 14, 2017

      POINTS OF COUNSEL

      Ephraim Savitt, New York City, for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Joshua L. Haber and Susan Gliner of counsel), for respondent.
   OPINION OF THE COURT

Abdus-Salaam, J.

In August 2011, defendant, an off-duty New York City police officer, raped, sodomized and sexually assaulted a 25-year-old school teacher in a residential courtyard, while threatening her with his loaded, police-issued weapon. Defendant was convicted, upon a jury verdict, of three counts of predatory sexual assault and three counts of criminal sexual act in the first degree. He was sentenced to a term of 25 years in prison followed by 20 years of postrelease supervision on each of the three counts of criminal sexual act and 25 years to life on each corresponding count of predatory sexual assault. The sentence imposed for each of the three criminal sexual acts was run concurrently to the sentence for the corresponding predatory sexual assault, and the three “pairs” of sentences were run consecutively to each other, yielding an aggregate term of 75 years to life.

The Appellate Division affirmed the judgment (126 AD3d 618 [1st Dept 2015]), concluding that the sentencing court lawfully imposed consecutive sentences for defendant’s three predatory sexual assault convictions. The Appellate Division determined that although defendant’s convictions on three counts of predatory sexual assault involved a single transaction and shared the dangerous instrument element, consecutive sentences were permissible because the three criminal sexual acts were separate and distinct. Furthermore, as relevant to this appeal, the Court held, citing People v Ingram (67 NY2d 897, 899 [1986]), that defendant failed to preserve his claim that his aggregate sentence was unconstitutionally excessive under the Eighth Amendment of the United States Constitution. The Court declined to review the constitutional claim in the interest of justice and perceived no basis for reducing the sentence in the interest of justice.

Here, defendant renews his argument that his aggregate sentence violates the Eighth Amendment of the United States Constitution. Additionally, for the first time in any court, he contends that his sentence violates article I, § 5 of the New York Constitution.

Defendant failed to preserve for review his claim that the sentence imposed by the court was “cruel and unusual.” Although defendant generally objected to the length of the sentence before the sentencing court, arguing that the sentence was draconian, he did not alert the court to his constitutional argument. Thus, the sentencing court was never given an opportunity to address any of the constitutional challenges that defendant now lodges with this Court. Accordingly, defendant’s “claim . . . that his sentence constituted cruel and inhuman punishment ... is not properly before us” (Ingram, 67 NY2d at 899; see also United States v Rivera, 546 F3d 245, 254 [2d Cir 2008] [“(t)here is no reason why (the defendant’s) constitutional challenges could not have been raised below, where he had ample opportunity to raise them and where the district court would have had the opportunity to address them” (citation and internal quotation marks omitted)]).

Defendant’s attempt to fit himself within the narrow exceptions to the preservation rule described by this Court in People v Fuller (57 NY2d 152 [1982]) and People v Morse (62 NY2d 205 [1984]) is unavailing. Fuller involved the court’s abdication of its responsibility to fix the amount and terms of restitution, and the “essential nature” of the right to be sentenced as provided by law (57 NY2d at 156). And, in Morse, we considered a court’s statutory power to impose an enhanced sentence. Neither of those cases involved a claim that a sentence constituted cruel and unusual punishment. In fact, we indicated in Ingram, citing to both Morse and Fuller, that with respect to the rules of preservation, we were distinguishing between Eighth Amendment claims on the one hand, and challenges to the fundamental sentencing power of the trial court on the other {Ingram, 67 NY2d at 899). Furthermore, the narrow exception to the preservation rule, where the illegality of a sentence can readily be discerned from the trial record, is inapplicable here (see People v Santiago, 22 NY3d 900, 903 [2013]; People v Nieves, 2 NY3d 310, 315-316 [2004]).

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

Chief Judge DiFiore and Judges Rivera, Stein, Fahey and Garcia concur; Judge Wilson taking no part.

Order affirmed.

      . The jury was deadlocked on the two counts of rape in the first degree and two corresponding counts of predatory sexual assault, and defendant subsequently pleaded guilty to all four of those counts. Pursuant to the plea agreement, the sentencing judge imposed an aggregate prison term of 10 years followed by 20 years’ postrelease supervision on each of the two rape counts, and 10 years to life on each of the two remaining predatory sexual assault counts, which he ordered to run concurrently to the aggregate sentence previously imposed.

      . Defendant’s submission to this Court of sentencing statistics are ir-revelant as they were not presented to the sentencing court.


text:
    [71 NE3d 946, 49 NYS3d 358]
    Anthony Oddo, Respondent, v Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc., Appellant.
    Argued January 10, 2017;
    decided February 16, 2017

      POINTS OF COUNSEL

      Marshall Conway & Bradley, P.C., New York City (.Amy S. Weissman, Jeffrey A. Marshall and Lauren Turkel of counsel), for appellant.

      Burns & Harris, New York City (Brian J. Isaac, Blake G. Goldfarb and Judith F. Stempler of counsel), for respondent.

      Pacific Legal Foundation, Sacramento, California (Deborah J. La Fetra of counsel), for Pacific Legal Foundation, amicus curiae.
   OPINION OF THE COURT

Abdus-Salaam, J.

On this appeal challenging the denial of a motion for summary judgment, we consider whether the defendant mental health and substance abuse treatment facility owed a duty of care to plaintiff, who was assaulted by one of defendant’s discharged residents. Because defendant discharged the resident from the program, and thus lacked control over him at the time of the incident, we hold that defendant owed no duty of care to plaintiff.

L

Nonparty Sean Velentzas was arrested for holding a cab driver at gunpoint and forcing him to withdraw money from an ATM. Velentzas was given the opportunity to participate in Treatment Alternatives for Safer Communities (TASC). TASC is an alternative-to-incarceration service which, with the consent of the court and the District Attorney, works with organizations like defendant, Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc. (JCAP), to provide criminal defendants with substance abuse and mental health treatment services. Velentzas was admitted to JCAP and was expected to complete the program within 18 months; however, three weeks into his program, he got into an altercation with another resident and admitted to having consumed alcohol while at JCAP’s facility. As a result, and pursuant to established guidelines, JCAP discharged Velentzas from the facility. Shortly after his expulsion, Velent-zas assaulted plaintiff Anthony Oddo—his mother’s boyfriend—by repeatedly punching him in his face and stabbing him in the shoulder.

Plaintiff commenced this negligence action against JCAP contending that his injuries were solely the result of JCAP negligently releasing Velentzas. After answering the complaint and following discovery, JCAP moved for summary judgment dismissing the complaint. JCAP argued that it owed no duty to plaintiff because Velentzas was properly discharged from the facility for having violated its policies against violence and alcohol use. In support of its motion, JCAP submitted the deposition testimony and affidavit of Ricky Cottingham, JCAP’s acting clinical program director. In his deposition, Cottingham explained that during approved outings, residents are escorted by JCAP staff and must sign in and out when they leave and return to the facility. However, residents can leave the program against medical advice and, in any event, JCAP staff members are not authorized to physically prevent a participant from leaving the building.

In his affidavit, Cottingham stated that he was advised by facility staff on the day of the incident that Velentzas broke two cardinal rules of the facility: intoxication and physical violence. This required his dismissal. He explained that when TASC participants are dismissed from the program, TASC must be notified of the participant’s rule violation and discharge from the program, and the participant is directed to report to TASC on the following business day. Cottingham stated that because Velentzas was dismissed on a weekend, he would have to report to TASC the following Monday. Similarly, because of the weekend dismissal, TASC would also be notified on that date.

Cottingham explained that, following the incident, JCAP began filling out paperwork to transfer Velentzas to an intermediary facility until Queens TASC could be notified of the altercation and violation of JCAP’s rules. However, Cot-tingham stated that as the paperwork was being filled out, Velentzas became enraged and began acting out of control. Staff, in accordance with JCAP’s policy, called 911. When the police arrived Velentzas was escorted off the premises. Cotting-ham opined that JCAP did not release Velentzas to the general public and did not intend to do so.

Additionally, in support of its motion, JCAP submitted a copy of the report that was created by a JCAP clinical counselor following the incident, which stated:

“Client had pushed another client to the ground. It was alleged that he was intoxicated. He refused to submit to a breathalyzer but admitted to drinking. He stated that he was leaving and left against clinical advice. . . .
“Staff informed him that he had broken a cardinal rule and that there is no threat of violence or violence on property. Staff called 911 and he was escorted by police officers off the property.”

Supreme Court denied JCAP’s motion for summary judgment, holding that JCAP owed a duty of care to plaintiff. The Appellate Division, with one Justice dissenting, affirmed (135 AD3d 211 [1st Dept 2015]). The dissent reasoned that JCAP did not have a duty to protect the general public from Velent-zas after his proper discharge from the facility. That Court granted JCAP’s motion for leave to appeal to this Court, certifying the following question: “Was the order of this Court, which affirmed the order of Supreme Court, properly made?” Because we agree with the dissent’s conclusion, we reverse, and answer the certified question in the negative.

IL

On this motion for summary judgment, we are guided by our principle that summary judgment will be granted to the mov-ant where it presents sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The issue here—whether JCAP owed a duty of care to plaintiff—“is a legal issue for the courts” to decide (Eiseman v State of New York, 70 NY2d 175, 187 [1987]). Thus, the absence of a duty of care in this negligence action will entitle JCAP to summary judgment, as “[t]he threshold question in any negligence action is . . . [whether the] defendant owe[s] a legally recognized duty of care to [the] plaintiff” (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]).

Generally, there is no

“duty to control the conduct of third persons to prevent them from causing injury to others; liability for the negligent acts of third persons generally arises when the defendant has authority to control the actions of such third persons. This is so . . . even where 'as a practical matter’ defendant could have exercised such control” (Purdy v Public Adm’r of County of Westchester, 72 NY2d 1, 8 [1988] [citations omitted], rearg denied 72 NY2d 953 [1988], quoting D’Amico v Christie, 71 NY2d 76, 88 [1987]).

As we recognized in Hamilton v Beretta U.S.A. Corp., “[a] duty may arise . . . where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant’s actual control of the third person’s actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others” (96 NY2d at 233). Such relationships include master and servant, parent and child, and common carriers and their passengers (see id.).

JCAP relies on our decisions in D’Amico v Christie and its companion case Henry v Vann (71 NY2d 76 [1987]) to support its contention that it owed no duty to plaintiff, because it was no longer in control of Velentzas. In D’Amico, an employee became intoxicated while attending a work event and upon leaving got into a car accident. Similarly, in Henry, an employee, after being fired, left the employer’s premises and was involved in a car accident. In both cases, we determined that the employer was not liable for the injuries of the plaintiff because the employer was not in control of the employee’s actions. In Henry, we noted that the employer “did not take charge of [the employee]; it discharged [him]” {id. at 89).

Plaintiff argues that we should reject JCAP’s reliance on D’Amico and Henry because here JCAP maintained control over Velentzas. We disagree. JCAP discharged Velentzas from its facility and was no longer in charge of him when the incident occurred.

I—! I—I í—I

JCAP had some control or authority over its residents while they remained participants of the program. But, JCAP residents could leave the facility and terminate their participation in the program against medical advice. Although voluntary departure from the program would trigger adverse legal consequences—namely, dismissal from the TASC program and potential prosecution in criminal court for the charges against them—residents could leave at any time. In short, facilities like JCAP cannot force a participant to remain on the premises. These facilities are not prisons; JCAP’s control over Velentzas was, “in fact, entirely dependent upon [his] willingness to comply with and carry out” its directives (Matter of New York City Asbestos Litig., 5 NY3d 486, 495 [2005]). In the absence of the authority to prevent a participant from leaving, it follows that, when a participant is discharged from JCAP for violating facility rules, or withdraws from the program, he or she is no longer under the facility’s control.

Since JCAP had dismissed Velentzas from the program, it was not in control of him at the time of the incident giving rise to this lawsuit. Indeed, to hold otherwise would raise the question of how long any prior control would last. In Eiseman v State of New York, we noted that we must be cognizant not to impose on a party “limitless liability to an indeterminate class of persons conceivably injured by any negligence” (70 NY2d at 188). Recognizing that concern here, it is difficult, if not impossible, to determine when JCAP’s duty to protect the public from Velentzas would end if any duty existed beyond his discharge. It is unreasonable to impose upon facilities like JCAP a duty to protect the public from individuals they have dismissed from their charge because the duty would essentially be limitless. Additionally, finding a duty here could adversely impact facilities like JCAP’s willingness to participate in TASC, thereby inhibiting defendants’ access to treatment where TASC is deemed appropriate. Such a result would be contrary to public policy aimed at helping certain defendants overcome substance abuse issues and obtain treatment for mental health issues, in lieu of prison sentences so long as they remain in treatment.

Finally, JCAP is not negligent for failing to follow its internal policy of referring intoxicated residents discharged during the weekend to an intermediary facility. Although Velentzas was intoxicated at the time of his discharge, because he got into a physical altercation with another resident and was out of control while his transfer paperwork was being completed, JCAP called the police in an effort to protect the other resident and its staff members. JCAP’s failure to place Velentzas in an intermediary facility, however, is not a reason to hold that it still had control over him following his discharge and could be found negligent (see Pink v Rome Youth Hockey Assn., Inc., 28 NY3d 994, 998 [2016]). Therefore, JCAP is not negligent for failing to follow that particular policy.

m.

In sum, JCAP is correct that Velentzas was not under its control at the time of the assault and it owed no duty of care to plaintiff or to the public in general. Accordingly, the order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment dismissing the complaint granted, and certified question answered in the negative.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey and Garcia concur; Judge Wilson taking no part.

Order reversed, with costs, defendant’s motion for summary judgment dismissing the complaint granted, and certified question answered in the negative.