author: Ciparick, J.

text:
    [833 NE2d 228, 800 NYS2d 85]
    In the Matter of James Hughes et al., on Behalf of Themselves and All Other Similarly Situated Members of the International Union of Operating Engineers Local 14-14B and Local 15, 15A, 15C, 15D, AFL-CIO, Respondents, et al., Intervenors, v John J. Doherty, as Commissioner of the New York City Department of Sanitation, Appellant.
    Argued May 4, 2005;
    decided June 16, 2005

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Dona B. Morris, Francis F. Caputo and Blanche Greenfield of counsel), for appellant.
    I. Petitioners are not entitled to any relief because the City of New York’s actions respecting the layoffs of the Department of Sanitation employees at the Fresh Kills landfill were in all respects lawful, reasonable and proper. In particular, the City’s determination that the title of oiler was not a lower grade in direct line of promotion to the tractor operator or crane operator titles, as pertinent to establishing the preferred list under Civil Service Law § 81, was a proper exercise of discretion and was not arbitrary or capricious. (Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Johnson v Joy, 48 NY2d 689; Matter of Howard v Wyman, 28 NY2d 434; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Pagano v New York State Civ. Serv. Commn., 170 AD2d 733; Matter of Piekielniak v Axelrod, 92 AD2d 968; People ex rel. Schau v McWilliams, 185 NY 92; Matter of Wirzberger v Watson, 305 NY 507.) II. The courts below abused their discretion by effectively amending the petition to add a time-barred claim when they reached out to overrule the line of promotion determinations in effect for almost three decades although petitioners had not directly challenged those determinations as arbitrary and capricious in their pleadings. (New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194; Matter of Lubin v Board of Educ. of City of N.Y., 60 NY2d 974; Matter of Edmead v McGuire, 67 NY2d 714; Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352; Rosenthal v City of New York, 283 AD2d 156; Matter of Federation of Mental Health Ctrs. v DeBuono, 275 AD2d 557; Matter of New York State Rehabilitation Assn. v State of N.Y., Off. of Mental Retardation & Dev. Disabilities, 237 AD2d 718; Matter of Stearns v Office of Ct. Admin., 260 AD2d 900; Matter of Lacosse v McCauley, 229 AD2d 890; Sutherland v Village of Suffern, 139 AD2d 728.)

      Brady McGuire & Steinberg, P.C., Hastings-on-Hudson {James M. Steinberg of counsel), for respondents.
    I. Both the trial court and Appellate Division properly applied the correct standard of review based upon the testimony proffered at the hearing and reviewed in the appellate record. (Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Canava v Keyes, 62 AD2d 997; Matter of Chapin v Schechter, 23 Misc 2d 190; Matter of Walters v Clark, 53 AD2d 1012; Matter of Wirzberger v Watson, 305 NY 507.) II. The lower courts properly found that respondent-appellant failed to articulate a rationale basis why petitioners-respondents were supposedly not entitled to fill positions held by provisional oilers. (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Gavigan v McCoy, 37 NY2d 548; Matter of McDermott v New York State Off. of Mental Health, 195 AD2d 932; Matter of Jones v Carey, 55 AD2d 260; Abbott v City of Poughkeepsie, 98 Misc 2d 601; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Matter of Morrison v Hoberman, 26 NY2d 150; Matter of Hedeman v County of Dutchess, 234 AD2d 294; Matter of Cahill v Casey, 180 AD2d 680; Matter of Pesce v Reuter, 262 AD2d 648.) III. The Appellate Division properly found that respondent-appellant waived its right to raise the statute of limitations defense. (Szigyarto v Szigyarto, 64 NY2d 275; Reilley v City of New York, 273 App Div 1014, 298 NY 710; Faburn v Dimon, 20 App Div 529; Rosenthal v City of New York, 283 AD2d 156, 97 NY2d 654; Matter of Lubin v Board of Educ. of City of N. Y., 60 NY2d 974; Matter of Martin v Ronan, 44 NY2d 374; Matter of Edmead v McGuire, 67 NY2d 714; Sutherland v Village of Suffern, 139 AD2d 728; Matter of Stearns v Office of Ct. Admin., 260 AD2d 900; Matter of Lacosse v McCauley, 229 AD2d 890.)
   OPINION OF THE COURT

Ciparick, J.

The sole issue before this Court is whether the New York City Department of Sanitation (DOS) acted irrationally in determining that the title “oiler” is not in the direct line of promotion to the job titles “crane operator” and “tractor operator” when it refused to allow laid-off DOS crane and tractor operators to replace provisional oilers. We conclude that DOS, through the New York City Department of Citywide Administrative Services (DCAS), acted rationally and within its authority, and we reverse the order of the Appellate Division and dismiss the petition.

James Hughes and Joseph Konczynski commenced this CPLR article 78 proceeding on behalf of themselves and similarly situated members of International Union of Operating Engineers Local 14-14B and Local 15, 15A, 15C, 15D, AFL-CIO (collectively petitioners) against John J. Doherty as DOS Commissioner. Among other relief, the petition sought a recision of layoffs, back pay and reassignment to their former positions.

Petitioners were employed by DOS at the Fresh Kills landfill in Staten Island. In 1996, the State Legislature declared that Fresh Kills would be prohibited from accepting solid waste after January 1, 2002. Although the landfill effectively ceased operations in early 2001, the site was briefly reopened when it became an integral part of the post-September 11 recovery operation. However, after the recovery operation slowed down, the facility began to downsize.

The titles targeted for layoffs included crane and tractor operators. Prior to the layoffs, DCAS reviewed the proposed layoffs to determine if anyone was eligible for special transfers or whether there was another way to salvage the positions. Of the 12 crane operators at Fresh Kills, one was retained on site and the other 11 were scheduled for ^layoffs after it was determined that there were no other vacant or provisional crane operator titles. Of the 71 permanent tractor operators, 14 of the most senior operators were retained by DOS and six were transferred to other city agencies. The remaining 51 were also subject to layoff. On December 6, 2002, the layoffs were implemented.

Petitioners argued that the position of oiler falls within the direct line of promotion for tractor and crane operator or, in the alternative, that the positions should be considered comparable for layoff purposes. Supreme Court rejected the alternative argument but agreed with petitioners that the position of oiler was a “de facto” lower grade title in direct line of promotion for both crane operator and tractor operator. The court stated, “[t]he decision not to consider the oiler as such has no basis in reason or fact.” Supreme Court directed that the laid-off crane and tractor operators be placed on a preferred list and that they replace individuals holding provisional oiler positions pursuant to Civil Service Law § 81. The Appellate Division affirmed, holding that the agency acted arbitrarily and capriciously in not finding a direct line of promotion from oiler to crane and tractor operators. We granted leave to appeal and now reverse.

Civil Service Law § 81 provides that after abolition of a position, the individuals who are subject to layoffs are placed on a preferred list. That list is used to fill vacancies “first, in the same or similar position; second, in any position in a lower grade in line of promotion; and third, in any comparable position” (Civil Service Law § 81 [1]). As no vacant or provisional tractor or crane operator positions were available, the issue was narrowed to whether there existed a lower grade in line of promotion to crane operator or tractor operator, or whether there were any comparable positions.

A review of the respective job title classifications issued by DCAS reveals that since 1974 the primary duties of an oiler have been described as “the lubrication of power plant, pumping and/or construction equipment.” There is a multiple choice examination for the position and the direct lines of promotion are listed as only stationary engineer and electric stationary engineer, not crane or tractor operator.

A tractor operator, on the other hand, is described as one who “operates and does minor maintenance on refuse haulers . . . at landfills and other projects of the City of New York.” A practical examination is required and the title states that no current direct line of promotion in either direction exists for the title. The crane operator is listed as one who “operates, maintains and makes such minor repairs as are necessary to ensure continued operation of cranes.” A practical examination is also required for this title and although there is no direct line of promotion to the position of crane operator, there is a promotional line leading to supervisor crane operator.

When promotional series exist—that is, certain job titles are in a line of promotion to other job titles—the higher title is open only to employees being promoted from the lower grade job, based on a required promotional examination. Otherwise, jobs are filled by a competitive examination open to everyone who fits the specified qualifications. Here it is undisputed that the job title “oiler” is not currently classified as a lower grade title in the line of promotion to tractor or crane operator. The positions of crane operator, tractor operator and oiler are all based on open competitive examinations. The relevant aspects of the present classification system have been in place for over 30 years. Indeed, petitioners have benefitted from the very job classification system whose propriety they now seek to challenge, inasmuch as the open competitive system has enabled those who were not then employed by the City as oilers to apply for jobs that would otherwise have been closed to them.

Nevertheless, Supreme Court found that the oiler title was a “de facto” lower grade title in the line of promotion to crane and tractor operator, based primarily on the prior classification of a now superseded job title. The court determined that DCAS had failed to establish that the elimination of the oiler title from the relevant line of promotion after reclassification in 1974 was rational and therefore overruled the agency’s determination. That was error.

DCAS maintains both policy-making authority and functional responsibility for civil service matters in New York City (see NY City Charter § 813; see also Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436, 442 [1983]). As an administrative agency, DCAS is afforded discretion in its actions. Accordingly, judicial review of DCAS’s classification system and determinations are limited to whether there was a rational basis for the agency’s conclusion (see CPLR 7803 [3]; see also Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269, 277-278 [1972]). Unless the administrative agency’s determinations were arbitrary or capricious, a court should not undermine its actions (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]).

We hold that DCAS acted within its discretion in finding that an oiler was not in the direct line of promotion to the position of crane operator or tractor operator. Furthermore, the fact, relied on by Supreme Court, that the 1964 classification for “portable oiler” listed crane engineman and tractor operator as promotional lines does not make DCAS’s analysis irrational. It is within the agency’s power to make and adjust any such classifications (see generally Civil Service Law § 52). Indeed, there were several rational bases on which DCAS could have decided that the oiler job should not be in the direct line of promotion to tractor or crane operator.

First, in investigating petitioners’ grievances, DCAS asked an engineer to evaluate the roles of the tractor and crane operators compared to that of the oilers. The engineer found that, as a class, the duties and skills of each title do not entirely overlap and thus DCAS reasonably concluded that it would be in the City’s interest not to extend a promotional line where one did not then exist. If the agency had permitted the tractor and crane operators to displace provisional oilers, petitioners would have been assigned to the oiler positions based solely on seniority, with no consideration given to their actual skills. In addition, petitioners would have taken on the new positions without the benefits and safeguards of a probationary period.

Second, by declining to place oilers in the direct line of promotion to crane or tractor operators, the City opened up the operator jobs to competitive application—not limited to current oilers—thereby expanding the pool of skilled applicants available to fill the positions to include those noncity employees who might be most skillfully able to handle the machinery. Further, even if oilers had once been in the direct line of promotion, nothing prevented DCAS from later reevaluating the situation and acting to fulfill its responsibility to provide the City with the most qualified and skilled personnel.

Third, the superseded “portable oiler” job title, which had been in the direct line of promotion to crane engineman and tractor operator, specified in its job description that among the typical tasks to be performed by a worker serving in this title, was that the employee “[m]ay drive truck cranes.” When the specifications were redrawn for the reunified oiler title in 1974, however, there was no reference to any duties, responsibilities or typical tasks that involved the operation or driving of any portable construction equipment.

In rejecting the rationality of DCAS’s approach to establish lines of promotion, Supreme Court improperly substituted its judgment for the expertise of the agency. “The judicial function is exhausted when there is to be found a rational basis for the conclusions approved by the administrative body” (Matter of Sullivan County, 30 NY2d at 277-278 [citations omitted]). DCAS should be afforded discretion in the performance of its duties, and the classification system at issue was implemented and followed rationally. DCAS’s failure to find a line of promotion from oiler to crane and tractor operators was neither arbitrary nor capricious, but well reasoned in light of the actual roles of the titles and the public policy encouraging competitive and qualified personnel.

We need not reach the issue of whether DOS properly raised a statute of limitations defense.

Accordingly the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order reversed, etc.

      . Local 333, United Marine Division, ILA, AFL-CIO was permitted to intervene on behalf of displaced launch operators. Its claims, however, were dismissed by order of Supreme Court and are not the subject of this appeal.

      . In 1964 the oiler title was split into two titles, portable oiler and stationary oiler. We invalidated the title change in Matter of Morrison v Hoberman (26 NY2d 150 [1970]). Subsequently, the titles were reclassified as one in 1974. In doing so, however, DCAS also removed the promotional line to crane engineman and tractor operator that had existed in 1964 for portable oiler.


source: Caselaw Access Project

author: ClPARICK, J.

license: Public Domain

text:
    [833 NE2d 248, 800 NYS2d 105]
    The People of the State of New York, Respondent, v Thomas Hanley, Appellant.
    Argued June 2, 2005;
    decided June 29, 2005

      POINTS OF COUNSEL

      Gary T. Kelder, Manlius, for appellant.
    I. Appellant was deprived of a fair trial by the trial court’s refusal to allow a defense witness to testify that the prosecution’s two key witnesses had a bad reputation in the community for truth and veracity. (People v Bouton, 50 NY2d 130; People v Pavao, 59 NY2d 282; People v Nieves, 67 NY2d 125; People v LaFontaine, 92 NY2d 470; People v Rosario, 298 AD2d 244; People v Streitferdt, 169 AD2d 171; People v Hinksman, 192 NY 421; People v Carroll, 95 NY2d 375; People v Hudy, 73 NY2d 40; Carmell v Texas, 529 US 513.) II. Appellant was deprived of a fair trial by the trial court’s admission of inadmissible, unreliable, bolstering and otherwise highly prejudicial hearsay. (People v Vasquez, 88 NY2d 561; People v Brown, 80 NY2d 729; People v Kello, 96 NY2d 740; People v Demand, 268 AD2d 901; People v Watson, 299 AD2d 735; Brown v Keane, 355 F3d 82; People v Johnson, 1 NY3d 302; People v Marks, 6 NY2d 67; People v McDaniel, 81 NY2d 10; People v Nieves, 67 NY2d 125.) III. Appellant was denied his statutory and constitutional rights to a fair trial by an impartial jury by the trial court’s denial of a challenge for cause of a prospective juror who gave less-than-unequivocal assurances of her ability to be impartial. (People v Chambers, 97 NY2d 417; People v Johnson, 94 NY2d 600; People v Culhane, 33 NY2d 90; People v Blyden, 55 NY2d 73; People v Greene, 290 AD2d 349; People v Thorn, 269 AD2d 756; People v Burdo, 256 AD2d 737; People v Brzezicki, 249 AD2d 917; People v Webster, 177 AD2d 1026; People v Smith, 8 AD3d 965.)

      Robert M. Morgenthau, District Attorney, New York City (Sandra E. Cavazos and Gina Mignola of counsel), for respondent.
    I. The trial court correctly denied defendant’s request to present a purported reputation witness, since defendant failed to establish an adequate foundation for such testimony. In any event, any error was harmless. (People v Hinksman, 192 NY 421; People v Pavao, 59 NY2d 282; People v Bouton, 50 NY2d 130; People v Van Gaasbeck, 189 NY 408; People v Lopez, 266 AD2d 239; People v Starostin, 265 AD2d 267; People v Barber, 74 NY2d 653; People v Colantone, 243 NY 134; People v Carlo, 46 AD2d 764; People v Loris, 131 App Div 127.) II. Defendant’s evidentiary claims are largely unpreserved and entirely meritless. (People v Boyd, 58 NY2d 1016; People v Lewis, 69 NY2d 321; People v Brensic, 70 NY2d 9; People v Davis, 58 NY2d 1102; People v Buie, 86 NY2d 501; People v Seit, 86 NY2d 92; People v McDaniel, 81 NY2d 10; People v Craig, 293 AD2d 351; People v Massie, 2 NY3d 179; People v Rojas, 97 NY2d 32.) III. The court correctly denied defendant’s challenge for cause lodged against a prospective juror. (People v Chambers, 97 NY2d 417; People v Arnold, 96 NY2d 358; People v Williams, 63 NY2d 882; People v Feliciano, 285 AD2d 371; People v Lucas, 297 AD2d 568; People v Turner, 6 AD3d 1190.)
   OPINION OF THE COURT

ClPARICK, J.

The issue here is whether defendant had a right to present testimony that a key prosecution witness had a bad reputation in the community for truth and veracity. We conclude that the trial court’s failure to allow such evidence was reversible error.

Defendant was no stranger to Wilson’s Bar in Manhattan. He lived in the neighborhood and was a frequent patron. He knew the bartenders and had on numerous occasions borrowed money from them which he usually repaid. However, when he walked into the bar on October 29, 1997, according to the People, he did not show up merely for a drink but instead commenced a series of three armed robberies. On that day James McEnroe was the bartender on duty. He testified that defendant came in at 2:30 a.m., near closing time, and asked for money. After telling him that the day’s receipts had already been placed in the safe, defendant insisted that McEnroe give him money. McEnroe testified that defendant placed his hand near his waistband and he saw “what I think was something black in his hand,” which he believed was a gun. McEnroe then gave defendant $100 from his own pocket, and defendant left. A patron, over McEnroe’s objection, called the police, though McEnroe declined to make a statement when the officers responded.

McEnroe testified that at about 9:00 p.m. on November 5, 1997, defendant again entered the bar and asked for a drink. After McEnroe denied the request, defendant lifted his shirt to show what “possibly looked like the handle of a gun” and purportedly said “give me a screwdriver or I’ll blast you.” McEnroe gave him the drink and defendant then placed $50 on the bar, paying for drinks for himself and other patrons.

The third incident occurred on January 20, 1998 while Brendan Sean Byrne was tending bar at Wilson’s. Byrne testified that at about 3:15 p.m. defendant walked in and asked for a drink. Having heard from McEnroe about the prior incidents, Byrne testified that he told defendant he could not drink at the bar. Byrne further testified that defendant also asked for $90 which he said he did not have, at which point defendant put his hand in his pocket and pointed at Byrne. Byrne then gave defendant $45 of his own money. McEnroe showed up minutes after defendant left. Both bartenders were later interviewed by the officers who responded after a patron called the police. No complaint was filed and no mention of armed robbery appeared in the police report.

McEnroe testified that defendant again returned to the bar on January 24, 1998, complaining that the police had been called. He stated that defendant approached him with his hand at his waistband and declared “I’ll do you right here in front of everybody,” though McEnroe did not see a gun. Defendant was then ushered out of the bar by a group of customers and McEnroe called the police. Shortly thereafter, defendant was apprehended in the neighborhood. No gun was recovered from defendant or found in the area.

Defendant was charged with three counts of robbery in the first degree for the October 29, 1997, November 5, 1997 and January 20, 1998 incidents and one count of menacing in the third degree for the January 24, 1998 incident. During the trial, defendant attempted to call a witness, a third bartender at Wilson’s, to impeach McEnroe and Byrne. The witness purportedly would have testified that both complainants had a bad reputation in the community for truth and. veracity. The court refused to allow the testimony. Defendant was convicted on all counts, and sentenced to concurrent terms of 10 years imprisonment on each robbery count and one year on the menacing count.

The Appellate Division modified the judgment by vacating defendant’s conviction for robbery in the first degree on the second count. The Court also reduced the sentence for the menacing conviction to three months—the maximum sentence for that crime. Two Justices dissented solely on the ground that the failure to allow defendant to call a witness who would have testified that McEnroe and Byrne had a bad reputation in the community for truthfulness and veracity deprived the defendant of a fair trial as it excluded material and relevant evidence. A Justice of the Appellate Division granted leave to appeal and we now reverse.

Analysis

It is well settled that a party cannot call a witness to contradict an opposing witness’ answers on cross-examination solely for the purpose of impeaching that person’s credibility (see People v Zabrocky, 26 NY2d 530, 535 [1970]). However, this rule is inapplicable where a party seeks to show that a witness generally has a bad reputation in the community for truth and veracity (see People v Hinksman, 192 NY 421, 432 [1908]). Hence, “a party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for the purposes of impeachment, has a bad reputation in the community for truth and veracity” (People v Pavao, 59 NY2d 282, 290 [1983]).

The trial court must allow such testimony, once a foundation has been laid, so long as it is relevant to contradict the testimony of a key witness and is limited to general reputation for truth and veracity in the community; the weight given to such evidence should be left in the hands of the jury (see id.). Applying this rule ensures that the jury is afforded a full picture of the witnesses presented, allowing it to give the proper weight to the testimony of such witnesses.

Materially at issue here was the veracity of the key prosecution witnesses, McEnroe and Byrne. Both bartenders knew defendant as a difficult customer who often borrows money. The bartenders further admitted to drinking alcohol while working and neither could conclusively state that he saw defendant with a gun, though they both made repeated references to the existence of a gun. The presence of a concealed firearm, or display of what appears to be a firearm is essential to the charge of first degree robbery (see Penal Law § 160.15 [2], [4]). The defense theory was that McEnroe and Byrne fabricated the gun, or what appeared to be a gun, in an effort to keep defendant and his aggressive panhandling away from the bar. To support this theory, defendant sought to introduce evidence that both bartenders were known in the community to exaggerate and lie. The proposed witness—described as a coworker who knew both witnesses—supposedly would have testified that McEnroe and Byrne had a bad reputation in the community for truth and veracity. Defendant’s request to put forth the reputation witness was denied by the trial court on the grounds that such evidence was too “nebulous” and could result in an endless number of reputation witnesses.

Defendant had a right to present to the jury a witness with personal knowledge of complainants’ bad reputation for truthfulness and veracity in the community. The element of the display of what appeared to be a weapon was essential to proving the crime charged, and the credibility of the witnesses who testified about the weapon was critical to the jury’s ultimate determination of whether the People had proved each element of the crime beyond a reasonable doubt.

We conclude, moreover, that defendant did establish a proper foundation for this evidence. Defense counsel specifically asserted that he was calling the witness to testify that McEnroe and Byrne “have [a] bad reputation in their community for truth and veracity.” He stated further that the witness “knows him” and “worked with them” and “knows who they are.” Without examining whether the witness was in fact qualified to offer such testimony, Supreme Court flatly rejected the request.

A witness’ reputation among coworkers can be probative and reliable. Indeed, an individual “might be better known in the community of his employment and in the circle of his vocational fellows, where opportunities to evidence the traits at stake may occur with greater frequency than in the environs of his dwelling place, nestled in the anonymity of a large city or suburb” (People v Bouton, 50 NY2d 130, 139 [1980]). As the proposed reputation witness worked in a close setting with McEnroe and Byrne and regularly interacted and communicated with the same group of people, he was well situated to offer such testimony.

Further, the prosecution’s case rested largely on Byrne and McEnroe’s testimony. The defense theory was that this was nothing more than an aggressive panhandler who had borrowed money in the past. Defendant argued that when the complainants grew tired of his antics they concocted a story that he had a gun in the hope that it would keep him away from the bar. The failure to allow the fellow bartender to testify that Byrne and McEnroe were known in the community to be dishonest was highly prejudicial to defendant as it deprived the jury of a tool to properly assess the credibility of the prosecution’s two key witnesses.

Defendant was further prejudiced by the prosecution’s summation which consisted not only of improper bolstering but also exploited the trial court’s ruling disallowing the reputation evidence. While discussing the credibility of its witnesses, the prosecutor asked the jury ‘[d]id you hear anything, or did you see anything about those witnesses that would in any way lead you to believe that those were the types of people [liars devoid of character] that Mr. McEnroe was or that Sean Byrne was?” The jury was never provided with the basis for answering that question.

Supreme Court incorrectly analyzed the admission of the proposed testimony as purely discretionary. As we made clear in Pavao, a party may introduce reputation testimony as a matter of right if a proper foundation has been established. The court’s discretion arises only when a party seeks to rebut that testimony. It is at that point that the judge may determine whether the admission of further testimony or the calling of additional witnesses is proper (see Pavao, 59 NY2d at 290). This assures that the court will not be inundated with competing witnesses that will cause undue delay in bringing a trial to conclusion.

Finally, since admission of the reputation evidence would have been relevant and material to the issue of the reliability and credibility of the complainants’ testimony, it could reasonably have altered the jury’s decision. As there exists a significant probability that the jury—if it found that McEnroe and Byrne’s accounts about the display of a weapon were exaggerated—would have acquitted defendant of robbery in the first degree, the conviction should be reversed (see People v Crimmins, 36 NY2d 230, 242 [1975]). Having found reversible error on the reputation evidence question, we need not reach the remaining issues in this case.

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

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order reversed, etc.

       The Appellate Division found that the charges based on the November 5, 1997 incident could not be sustained as a matter of law and dismissed the count.


author: Rosenblatt, J.

text:
    [832 NE2d 1179, 799 NYS2d 763]
    The People of the State of New York, Respondent, v Thomas Kelly, Appellant.
    Argued June 2, 2005;
    decided June 29, 2005

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Abigail Everett and Robert S. Dean of counsel), for appellant.
    The trial court—despite being on notice that the deliberating jurors had asked the court officer “to do something with the bayonet and sheath beyond the mere viewing of them”—abdicated its obligation to supervise jury deliberations when it simply instructed the jurors to “disregard” “any demonstrations by court officers in the jury room with the evidence,” without responding, in the presence of defendant, to the jurors’ original request to hold the exhibit and test it for themselves. (People v Ahmed, 66 NY2d 307; Cancemi v People, 18 NY 128; People v Mehmedi, 69 NY2d 759; People v Bayes, 78 NY2d 546; People v Bonaparte, 78 NY2d 26; People v Torres, 72 NY2d 1007; People v Khalek, 91 NY2d 838; Allen v United States, 164 US 492; Snyder v Massachusetts, 291 US 97; People v Harris, 76 NY2d 810.)

      Robert M. Morgenthau, District Attorney, New York City (Eleanor J. Ostrow and Hilary Hassler of counsel), for respondent.
    The trial court did not abdicate its obligation to supervise the trial proceedings, and defendant’s right to be present was not violated. (People v Agramonte, 87 NY2d 765; People v Ahmed, 66 NY2d 307; People v Torres, 72 NY2d 1007; People v Khalek, 91 NY2d 838; People v Bonaparte, 78 NY2d 26; People v Gomez, 273 AD2d 160; People v Maragh, 94 NY2d 569; People v Cahill, 2 NY3d 14; People v Velasco, 77 NY2d 469; People v DeRosario, 81 NY2d 801.)
   OPINION OF THE COURT

Rosenblatt, J.

While alone with the jury during deliberations, a court officer conducted an unauthorized demonstration on the weapon involved in a murder trial. Defendant argues that this amounted to a “mode of proceedings” error that can be raised on appeal, even though he did not preserve it. We disagree and affirm the Appellate Division order sustaining the conviction.

L

Defendant was charged with murder in the second degree for fatally stabbing his ex-girlfriend’s father with a 12-inch-long bayonet. At trial, the jury heard conflicting accounts of the killing. The People claimed the stabbing was deliberate and unprovoked. Testifying on his own behalf, defendant claimed he was acting in self-defense after the deceased had seized the bayonet from a sheath hanging on defendant’s belt. Accordingly, the trial court charged the jury on justification.

At the start of jury deliberations, the parties consented to allow trial exhibits to be given to the jurors whenever they asked for them. In response to a written request on the third day of deliberations, a court officer brought the bayonet and sheath into the jury room. The jurors wanted to handle the bayonet, but the court officer refused, out , of concern for their safety. While in the jury room, however, he agreed to the juiy’s request that he place the bayonet in his waistband (as the defendant had worn it) and draw it from its sheath. The jurors watched the court officer conduct this demonstration and asked him whether the bayonet had slid out of the sheath easily. He replied that it had. All of this took place without the court’s knowledge or approval.

When the court officer told the court what had happened, the court promptly advised both sides, and an off-the-record discussion ensued. After consulting with defendant, his counsel agreed that the appropriate recourse would be for the court to instruct the jury to disregard the court officer’s demonstration. The court had the jurors return to the courtroom and, in wording that satisfied defendant, instructed them that “[a]ny demonstrations by court officers in the jury room, with the evidence, must be disregarded by you and must play no part whatsoever in your deliberations.” The jury continued its deliberations and ultimately found defendant guilty of intentional murder.

Following sentencing, defendant made a CPL 440.10 motion to vacate the judgment because of the court officer’s jury room demonstration. After holding an evidentiary hearing, the court denied the motion. It found that, by agreeing to the curative instruction, the defense had waived any issue as to the demonstration. The court further rejected defendant’s contention that a mode of proceedings error had occurred.

Defendant appealed from the judgment of conviction and the order denying CPL 440.10 relief. The Appellate Division affirmed as to both, concluding that the court officer’s refusal to let the jurors experiment with the bayonet was a ministerial act and that his conduct did not amount to a usurpation of the trial court’s supervision of or control over the proceedings. The court also noted that the trial judge conferred with the parties about how to deal with the court officer’s impropriety and that, instead of asking for a mistrial or even protesting the jury room demonstration, defendant opted for a curative instruction and the continuation of deliberations. A Judge of this Court granted defendant leave to appeal, and we now affirm.

IL

Defendant argues that the court officer’s conduct deprived him of his constitutional right to trial by jury, an integral component of which is supervision by a judge. He asserts that the court officer’s unsupervised demonstration constituted an error that need not be preserved and cannot be waived (except by a defendant in writing, in the court’s presence and with its approval). Further, defendant asserts that the court abdicated its supervisory responsibility when it instructed the jurors to disregard the court officer’s demonstration.

Defendant relies principally on People v Ahmed (66 NY2d 307 [1985]). There, we held that a judge who delegated away an essential judicial function compromised the very organization of the court and the lawful mode of proceedings. The error in Ahmed, although unprotested, presented a question of law enabling this Court to review the claim. Because the ailing trial judge directed his law secretary to answer questions posed by a deliberating jury, this Court reversed the conviction, even though Ahmed had consented to the procedure.

Ordinarily, preservation is essential to the exercise of this Court’s jurisdiction, which is limited to the review of questions of law (NY Const, art VI, § 3 [a]; see also Karger, Powers of the New York Court of Appeals § 137, at 787 [3d ed]). Nevertheless, in a very narrow category of cases, we have recognized so-called “mode of proceedings” errors that go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted (see generally People v Agramonte, 87 NY2d 765, 770 [1996]). Errors within this tightly circumscribed class are immune from the requirement of preservation. Outside the context described by these cases, however, we have repeatedly held that a court’s failure to adhere to a statutorily or constitutionally grounded procedural protection does not relieve the defendant of the obligation to protest.

In contrast to Ahmed, there was no mode of proceedings error in the case before us. Here, the judge delegated nothing. The very opposite took place. The court officer’s demonstration to the jury was unauthorized, and when learning of it, the court took hold of the proceedings and summoned the lawyers to discuss the options.

The People argue, correctly, that the case before us is far closer to People v Bonaparte (78 NY2d 26 [1991]) than it is to Ahmed. In Bonaparte, a court officer, directed by the trial court, told a deliberating jury that it would be sequestered and should stop deliberating. The court, however, failed to instruct the jurors not to deliberate while sequestered. We affirmed the conviction, concluding that the court officer’s communication was ministerial and that the court’s failure, unprotested, did not present an issue of law for the Court’s review. The case before us argues even more strongly for affirmance. In Bonaparte, the court officer was acting based on authority given him by the court. Here, he was not.

The Appellate Division correctly rejected defendant’s assertion that the court officer “usurped” the court’s authority. People v Khalek (91 NY2d 838 [1997]), on which defendant relies, does not support his position. In Khalek, a court officer usurped the court’s authority by telling the jury that it would have to be sequestered overnight even though it had reached a verdict. Because of the court officer’s improper instruction, the jury did not report its verdict (evidently a complete acquittal) and resumed deliberations the following morning, ultimately convicting defendant of one of the charges. Here, by way of contrast, the court officer did not have the last word; the court did, after it continued to exercise full and proper control of the trial. By airing the problem, the trial court gave defendant an opportunity to object to the court officer’s demonstration. The record is devoid of an objection; instead, defendant obviously wanted the case to go to verdict, and was satisfied with a curative instruction. In all, the impropriety was protestable but unprotested, curable and cured.

We find defendant’s other contentions without merit. Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order affirmed.

      . By contrast, the Appellate Division has jurisdiction to review any unpreserved error in the interests of justice (see CPL 470.15 [1] [authorizing intermediate appellate courts to “consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant’.’]; see e.g. People v Cona, 49 NY2d 26 [1979]; People v Robinson, 36 NY2d 224 [1975]).

      . See e.g. Pierson v People, 79 NY 424 (1880) (involving a formal irregularity in drawing jurors); People v Gray, 86 NY2d 10 (1995) (allegation that prosecution failed to prove each element of the crime charged); People v Webb, 78 NY2d 335 (1991) (failure to sequester the jury); People v Irizarry, 83 NY2d 557 (1994) (dual juries, with failure to seal first jury’s verdict until second verdict was returned); People v Buford, 69 NY2d 290 (1987) (excusal of sworn juror as “grossly unqualified”); People v Cosmo, 205 NY 91 (1912) (juror lacked property qualifications required by statute); People v Hernandez, 94 NY2d 552 (2000) (trial judge’s absence during readback proceedings did not impair the judge’s performance of a nondelegable judicial function); see generally People v Thomas, 50 NY2d 467 (1980) (noting that, in many instances, constitutional rights are waived if not preserved).


author: Graffeo, J.

text:
    [833 NE2d 239, 800 NYS2d 96]
    The People of the State of New York, Respondent, v Kenneth J. Paulman, Appellant.
    Argued June 2, 2005;
    decided June 29, 2005

      POINTS OF COUNSEL

      John E. Tyo, Shortsville, for appellant.
    I. The actions of Trooper Oliver in directing defendant to write a statement were intended or likely to elicit an incriminating response; it was “interrogation” requiring the Miranda warnings. The statement should be suppressed and Mr. Paulman’s conviction reversed. (People v Yukl, 25 NY2d 585; Rhode Island v Innis, 446 US 291; People v Lanahan, 55 NY2d 711; People v Ferro, 63 NY2d 316; People v Velasquez, 68 NY2d 533; People v Kollar, 305 AD2d 295; People v Stoesser, 53 NY2d 648; Miranda v Arizona, 384 US 436; People v Maerling, 46 NY2d 289; People v Tanner, 30 NY2d 102.) II. The error in allowing the handwritten statement into evidence was not harmless. (Chapman v California, 386 US 18; Fahy v Connecticut, 375 US 85; People v Crimmins, 36 NY2d 230.) III. The statements given to Investigator Baldwin should have been suppressed, because although they were made after the Miranda warnings, the questioning was too close in sequence to the prior un-Mirandized statement given to Trooper Oliver and there was no attenuation between the two. (People v Gomez, 192 AD2d 549; Miranda v Arizona, 384 US 436; People v Bethea, 67 NY2d 364; People v Chapple, 38 NY2d 112; People v Tanner, 30 NY2d 102; People v Bolus, 185 AD2d 1007; People v Jones, 87 AD2d 761.) IV The error allowing into evidence the statements made to Investigator Baldwin was not harmless. (People v Hamlin, 71 NY2d 750; People v Almestica, 42 NY2d 222; Fahy v Connecticut, 375 US 85; Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230; People v Mees, 47 NY2d 997.)

      R. Michael Tantillo, District Attorney, Canandaigua {James B. Ritts of counsel), for respondent.
    I. The trial court properly determined that the statement given by defendant was not the product of interrogation or its functional equivalent. (People v Yukl, 25 NY2d 585; People v Bryant, 59 NY2d 786; People v Dynes, 49 NY2d 286; Rhode Island v Innis, 446 US 291; People v Ferro, 63 NY2d 316; People v Lanahan, 55 NY2d 711; People v Prochilo, 41 NY2d 759; People v Rivers, 56 NY2d 476.) II. Assuming arguendo, the trial court erred in denying the suppression of defendant’s unwarned handwritten statement, the subsequent statements to Investigator Baldwin after Miranda warnings were properly admitted. (People v Gomez, 192 AD2d 549, 82 NY2d 806; People v Kaufman, 288 AD2d 895, 97 NY2d 684; Oregon v Elstad, 470 US 298; People v Chapple, 38 NY2d 112; People v Gary, 31 NY2d 68; People v Nisbett, 225 AD2d 801, 88 NY2d 939; People v Samuels, 11 AD3d 372; People v Smith, 275 AD2d 951, 96 NY2d 739.) III. Assuming, arguendo, the trial court erred in admitting any or all of defendant’s final three statements, any such error was harmless. (People v Crimmins, 36 NY2d 230; People v Schaeffer, 56 NY2d 448; People v Harris, 57 NY2d 335; People v Eastman, 85 NY2d 265; People v Hamlin, 71 NY2d 750.)
   OPINION OF THE COURT

Graffeo, J.

During a child sexual abuse investigation, defendant made four incriminating statements to the police in successive interrogations spanning a period of several hours. The Appellate Division ruled that one of the statements was inadmissible because it had not been preceded by Miranda warnings. The primary issue presented in this case is whether two statements defendant made after he was given Miranda warnings and waived his right to remain silent should have been suppressed due to the prior, unwarned statement. Under the circumstances of this case, we conclude the subsequent statements were properly received in evidence.

In the spring of 2002, defendant Kenneth Paulman resided with his girlfriend in an apartment complex in Canandaigua, New York. The People offered evidence at the suppression hearing that, just after midnight on May 4, 2002, the police were contacted by the mother of Ashlyn, a four-year-old girl, who stated that she had information relating to a child sexual abuse investigation. That same night, defendant had called the police and reported that he had been threatened by members of Ashlyn’s family. After speaking to Ashlyn’s mother, New York State Trooper Jean Oliver and her partner went to defendant’s apartment. Defendant answered the door and invited Trooper Oliver inside. Trooper Oliver told defendant that she was there to investigate some allegations of sexual abuse. Defendant spoke freely about the allegations, telling her that his girlfriend frequently babysat Ashlyn and Tiffany, an eight-year-old girl who also lived in the complex. He described an incident when he tickled the naked girls, who had just stepped out of their bath. During this incident, he claimed that he had accidentally slipped a finger into Ashlyn’s vagina. Defendant also detailed other occasions when he and Ashlyn had been in bed and he had rubbed Ashlyn against his penis. When he was advised that Ashlyn had some redness near her vagina, defendant explained that this could have been from his finger or belt buckle. During this conversation, defendant took Trooper Oliver around the apartment and showed her the locations where the various incidents had occurred. Toward the end of their discussion, defendant mentioned the name of another girl from the complex, remarking that “[t]he only mistake I made was with Autumn.” When asked what he meant, defendant admitted that he had engaged in sexual intercourse with Autumn, who defendant believed to be 12 years old (the police later established that Autumn was 13 years old).

Trooper Oliver next asked defendant to accompany her to the barracks to speak to an investigator. Defendant agreed and rode with the troopers in their patrol car. Upon arrival at the barracks, defendant was seated in the patrol room, an area with two open doors. Defendant was told that another State Police officer—Investigator Christopher Baldwin—would arrive shortly. In the meantime, Trooper Oliver gave defendant a notepad and said: “Why don’t you just start taking some notes then as to, you know, your best recollection as to what has happened.” Defendant composed a statement in which he repeated the admissions previously made concerning his physical contact with Ashlyn and Tiffany. As he was working on the statement, defendant told Trooper Oliver that he was hungry, and she brought him pizza and soda.

When Investigator Baldwin arrived at the barracks at about 3:00 a.m., he saw that defendant was in the patrol room writing on a notepad. Defendant finished the handwritten statement at about 3:30 a.m. He remained in the patrol room consuming his meal until approximately 4:00 a.m., at which time the investigator took defendant to his office at the back of the barracks. Investigator Baldwin read defendant his Miranda rights and defendant acknowledged that he understood them but wished to give a statement. The investigator then began questioning defendant concerning his contact with Ashlyn, Tiffany and Autumn. Defendant made a series of oral admissions, repeating what he had told Trooper Oliver and adding further details pertaining to the incidents. After defendant was again given Miranda warnings at 5:40 a.m., he signed a Miranda waiver and Investigator Baldwin began typing a written statement, recording defendant’s answers to specific questions. Defendant initialed each page and signed the typewritten, question-and-answer statement, which was completed at 7:40 a.m. In this statement, in addition to the sexual contact he had earlier described, defendant admitted having engaged in oral sex with Ashlyn and Autumn and acknowledged incidents involving his girlfriend’s two-year-old son and another 12-year-old girl in the complex. At the conclusion of the interrogation, defendant was formally placed under arrest.

Defendant was charged in a 22-count indictment with sexual misconduct involving five children who resided in the complex. Prior to trial, he moved to suppress all four of the statements made to the police: the oral statements to Trooper Oliver made in his apartment; the handwritten statement he wrote in the patrol room; the oral statements to Investigator Baldwin elicited in Baldwin’s office; and the typewritten statement that followed. Defense counsel argued that the first two statements should be suppressed because they were not preceded by Miranda warnings. Although the last two statements were obtained after Miranda warnings, defendant claimed they were also inadmissible because they were tainted by the prior, unwarned custodial interrogation.

The suppression court concluded that all of the statements were admissible at trial. With respect to the initial admissions made at defendant’s apartment, the court held that Miranda warnings were not necessary because defendant was not in police custody. The court found that defendant was in custody when he made the handwritten statement in the patrol room but that the statement was admissible because defendant was not subjected to interrogation. Having rejected defendant’s argument that the first two statements were improperly elicited in violation of the Miranda rule, the court also rejected defendant’s claim that the third and fourth statements— concededly made after defendant was advised of his Miranda rights—should be suppressed.

At trial, all four of defendant’s statements were received in evidence. In addition, three of the child victims testified against defendant. The four-year-old victim did not testify, but defendant’s abuse of that child was described by another victim. At the close of proof, defendant was convicted of 13 counts of the 22-count indictment. A determinate sentence of 17 years was imposed for the most serious charge of sodomy in the first degree, a consecutive sentence of 2 to 6 years was imposed for one count of rape in the second degree and lesser concurrent sentences were ordered for the other offenses.

On appeal, the Appellate Division affirmed the conviction. The Court disagreed with the suppression court’s analysis with respect to the handwritten statement, finding that it should have been suppressed because Trooper Oliver’s suggestion that defendant write down his thoughts was the functional equivalent of interrogation, thereby requiring Miranda warnings. Despite this error, the Court concluded that reversal was not warranted because the first, third and fourth statements were properly received in evidence and the improper admission of the second statement amounted to harmless error. Although our analysis differs in some respects from that of the Appellate Division, we also affirm.

In this Court, defendant has abandoned his argument that the first statement—the oral admissions he made to Trooper Oliver in his apartment—should have been suppressed. Conceding that these initial comments were admissible at trial, defendant now contends that the remaining three statements should have been suppressed because the police error in failing to give Miranda warnings prior to eliciting the second, handwritten statement tainted each of the subsequent statements, even though they were preceded by Miranda warnings.

The People continue to argue that defendant was not subjected to custodial interrogation when he made the handwritten statement and, as such, there was no Miranda violation. In the alternative, the People submit that even if the handwritten statement was inadmissible as the Appellate Division determined, the subsequent Mirandized statements were nonetheless admissible because they were not part of an unbroken, continuous chain of events flowing from the prior, unwarned statement. Since the admissions in the handwritten statement were the same as those in the other statements, the People maintain that its receipt into evidence at trial was harmless error.

I.

Because the People assert that the Appellate Division erred in concluding that the handwritten statement should have been suppressed, our first task is to address the custodial interrogation issue. Whether a suspect has been subjected to custodial interrogation presents a mixed question of law and fact over which this Court has limited powers of review (People v Cruz, 90 NY2d 961 [1997]; People v Harrison, 82 NY2d 693 [1993]; People v Harrison, 57 NY2d 470, 477 [1982]). The determination of the Appellate Division must be affirmed unless there is no record basis for the conclusion it reached.

The Miranda rule protects the privilege against self-incrimination and, “because the privilege applies only when an accused is ‘compelled’ to testify, the safeguards required by Miranda are not triggered unless a suspect is subject to ‘custodial interrogation’ ” (People v Berg, 92 NY2d 701, 704 [1999]). The standard for assessing a suspect’s custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave (see People v Harris, 48 NY2d 208, 215 [1979]; People v Yukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). “The term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response” (People v Ferro, 63 NY2d 316, 322 [1984], cert denied 472 US 1007 [1985], quoting Rhode Island v Innis, 446 US 291, 301 [1980]).

Based on this record, we cannot say that the Appellate Division erred in ruling that defendant was subjected to custodial interrogation when, after bringing defendant to the barracks, Trooper Oliver produced a notepad (which defendant had not requested) and told defendant to write down his “best recollection” of what had occurred. These circumstances support the inference that the handwritten statement was not spontaneous but was induced by Trooper Oliver, who should have known that her actions were likely to elicit an incriminating response. That being so, there is no basis to disturb the Appellate Division’s conclusion that the handwritten statement should have been suppressed because it was elicited without Miranda warnings.

II.

Having upheld the determination that an improper, unwarned statement was obtained prior to Investigator Baldwin’s interrogation, we turn to whether this error rendered the subsequent statements inadmissible. Although the Miranda rule was developed by the United States Supreme Court under the Fifth Amendment, New York courts have embraced the rule as consistent with article I, § 6 of the New York Constitution, which ensures that “[n]o person shall ... be compelled in any criminal case to be a witness against himself or herself.” In cases involving successive interrogations where a Mirandized statement was preceded by an improper, unwarned admission, our Court has recognized that the State Constitution may provide rights broader than those guaranteed under the Fifth Amendment (People v Bethea, 67 NY2d 364, 368 [1986]).

In Oregon v Elstad (470 US 298 [1985]), the Supreme Court suggested that, once Miranda warnings were given, the “taint” of a prior, unwarned statement was dissipated, rendering the subsequent statement admissible at trial. The Court reasoned:

“[A] careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible. The warning conveys the relevant information and thereafter the suspect’s choice whether to exercise his privilege to remain silent should ordinarily be viewed as an ‘act of free will’ ” (id. at 310-311).

Concerned that Elstad could be interpreted as holding that the mere fact that warnings were uttered would be sufficient to justify the admission of subsequent statements, this Court held in People v Bethea (67 NY2d 364 [1986]) that more was required under article I, § 6 of the New York Constitution. Adhering to the rule articulated in People v Chapple (38 NY2d 112, 114 [1975]), we clarified that where an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a “single continuous chain of events,” there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed.

To determine whether there is a “single continuous chain of events” under Chapple, New York courts have considered a number of factors, including the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police. No one factor is determinative and each case must be viewed on its unique facts. The purpose of the inquiry is to assess where there was a sufficiently “definite, pronounced break in the interrogation” to dissipate the taint from the Miranda violation (Chapple, 38 NY2d at 115). If so, the Mirandized statement is admissible at trial despite the prior, unwarned statement.

Applying the Chappie analysis, in this case there was a change in police personnel involved in the successive interrogations, which took place in different locations, and there were significant differences in the methods of eliciting information. Although prompted by Trooper Oliver, the handwritten statement was crafted by defendant without further involvement by the authorities. After defendant consumed a meal for about a half hour, Investigator Baldwin took him to his office, gave him Miranda warnings, and engaged in traditional, intensive interrogation, recording defendant’s admissions in a structured question-and-answer format. Under these circumstances, once Investigator Baldwin commenced his interrogation, a reasonable suspect in defendant’s position would have perceived a marked change in the tenor of his engagement with police.

It is also significant that, from the moment defendant encountered the police (who were, in part, responding to his telephone call for assistance), defendant exhibited a willingness to provide an explanation of his conduct and, once at the police barracks, he never expressed any reluctance to discuss the allegations. Moreover, the Miranda violation occurred after defendant had freely chosen to answer police questions in a noncustodial setting. Regardless of whatever motivated defendant to speak to police at his apartment and, later, to make the Mirandized statements, his decision to provide information did not flow as part of a “single continuous chain of events” from Trooper Oliver’s failure to give Miranda warnings prior to eliciting the handwritten statement at the barracks.

Defendant contends that our decision in Bethea mandates suppression in this case. In Bethea, after learning about an attempted burglary by two men whose appearance matched that of defendant and his companion, the police stopped them on the street in the vicinity of the crime and questioned them about the contents of a bag they were carrying. Upon discovering that the bag contained a revolver, the police arrested defendant. While transporting him to the police station, one of the officers asked defendant where he had obtained the gun, eliciting an incriminating response. At the precinct, the same officer gave defendant Miranda warnings, and then resumed the interrogation, at which point defendant repeated what he had said in the vehicle. This Court concluded that the Mirandized statement should have been suppressed because it was elicited as part of a single continuous chain of events flowing from the improper, unwarned custodial interrogation in the police car.

In contrast to this case, in Bethea the defendant was arrested, placed in the police vehicle and interrogated while being transported to the police station—the initial incriminating statements were clearly obtained in violation of Miranda requirements. Here, defendant initiated the arrival of police at his home and made incriminating statements while showing Trooper Oliver around his apartment. His first admissions were therefore not the product of police misconduct. Furthermore, in Bethea, there was no significant break in time between the inquiry in the car and the interrogation at the police station, nor was there any change in the nature or tenor of the questioning, while here there was a cessation of interrogation while defendant ate and significant differences in the tenor and method of inquiry. In Bethea, the Mirandized statement was elicited by the same police officer who had accosted defendant on the street, arrested him, and obtained the unwarned statement. Therefore, a reasonable suspect in defendant’s position would not have perceived a distinction between the interrogation in the car and the interrogation at the station. Moreover, the defendant had not previously expressed a desire to talk to the police. The same is not true here, where there was a change in police personnel and a defendant who, from the inception of his encounter with police, expressed a willingness to give a statement.

Defendant’s reliance on the Supreme Court’s recent decision in Missouri v Seibert (542 US 600 [2004]) is similarly misplaced. In Seibert, the Court assessed the constitutional propriety of a police protocol—the “question first” technique—whereby the authorities conducting custodial interrogation would intentionally withhold Miranda warnings until they extracted an incriminating statement from the suspect. There, defendant—later convicted of murder for the arson-related death of a teenage charge—was arrested and brought to the police station where she was questioned without Miranda warnings until she admitted that she knew the victim was to die in the fire. At the suppression hearing, the interrogating officer testified that, although defendant had been formally arrested, he intentionally withheld Miranda warnings, employing the “question first” protocol. After defendant made the incriminating statements, he administered Miranda warnings, obtained a waiver of rights, and resumed the interrogation, convincing defendant to repeat the prior statements.

A majority of the Court found that the “question first” practice was an impermissible end run around the Miranda rule, necessitating suppression of the Mirandized statement unless the People could show, notwithstanding the police misconduct, that the Miranda warnings were effective. Employing a multifactored test, the Seibert plurality concluded that the Mirandized statement was inadmissible because “[t]he unwarned, interrogation was conducted in the station house, . . . the questioning was systematic, exhaustive, and managed with psychological skill” and “[t]he warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment” (542 US at 616). The plurality reasoned that, under these circumstances, “[i]t would have been reasonable to regard the two sessions as parts of a continuum” (542 US at 616-617). The police error in this case was not comparable to the “question first” protocol condemned in Seibert, nor was the unwarned statement elicited through a process of systematic, exhaustive or psychologically coercive questioning. And given the break in questioning, change in location and police personnel, and distinctions in the nature of the interrogation, the “continuum” present in Seibert was absent here.

For all of these reasons, we conclude as a matter of law that the Mirandized statements in this case were admissible under state and federal constitutional standards.

III.

Although the two statements given after Miranda warnings were properly introduced at trial, the fact remains that the earlier, unwarned statement, also introduced by the People at trial, should have been suppressed. Defendant argues that reversal of his conviction is warranted because the admission of this statement was not harmless error. The Appellate Division rejected this argument, as do we.

The handwritten statement was cumulative of the oral admissions defendant made earlier at his apartment to Trooper Oliver. Moreover, based on the trial testimony of three of the victims, and defendant’s detailed admissions in the first, third and fourth statements, the proof of guilt was overwhelming. There is no reasonable possibility that the admission of the unwarned statement affected the verdict.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur.

Order affirmed.

      . Defendant was charged with four counts of sexual abuse in the first degree; three counts of sexual abuse in the second degree; five counts of endangering the welfare of a child; one count of sodomy in the first degree; one count of sodomy in the second degree; two counts of rape in the first degree; two counts of rape in the second degree; three counts of forcible touching; and one count of course of sexual conduct against a child in the first degree.

      . Defendant was convicted of one count of sodomy in the first degree, two counts of sexual abuse in the first degree, and one count of endangering the welfare of a child relating to incidents involving Ashlyn; two counts of rape in the second degree, two counts of sexual abuse in the second degree, one count of sodomy in the second degree, one count of forcible touching and one count of endangering the welfare of a child for incidents involving Autumn; one count of endangering the welfare of a child for an incident involving a 12 year old; and one count of endangering the welfare of a child for an incident involving Tiffany.

      . See e.g., People v Samuels (11 AD3d 372 [1st Dept 2004], lv denied 4 NY3d 802 [2005]); People v Cowell (11 AD3d 292 [1st Dept 2004], lv denied 4 NY3d 743 [2004]); People v Kollar (305 AD2d 295 [1st Dept 2003], appeal dismissed 1 NY3d 591 [2004]); People v Smith (275 AD2d 951 [4th Dept 2000], lv denied 96 NY2d 739 [2001]); People v Nisbett (225 AD2d 801 [2d Dept 1996], lv denied 88 NY2d 939 [1996]); People v Gomez (192 AD2d 549 [2d Dept 1993], lv denied 82 NY2d 806 [1993]); People v Bolus (185 AD2d 1007 [3d Dept 1992], lv denied 81 NY2d 785 [1993]).

      . In support of their respective arguments, the parties have cited rules developed in search and seizure cases (e.g., the attenuation doctrine) as well as New York right-to-counsel cases. We caution that the Chappie rule is tailored to safeguard the right against self-incrimination—it is not to he confused with the approaches taken in other contexts where different constitutional principles are at stake.

      . The plurality’s multifactored test considers “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first” (Seibert, 542 US at 615). In his concurring opinion, Justice Kennedy— who cast the fifth vote—did not endorse the multifactored test, holding that he would adhere to the Elstad analysis, except when the police deliberately employ the “question first” protocol. In that instance, under Justice Kennedy’s rationale the admissibility of the subsequent statement turns on a “narrower test,” which focuses on whether there was “a substantial break in time and circumstances between the prewarning statement and the Miranda warning” or “[c]urative measures . . . designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver” (542 US at 622 [Kennedy, J., concurring]). Because the statements in this case are admissible under the plurality’s more stringent test, they are necessarily admissible under Justice Kennedy’s analysis. Since Justice Kennedy’s narrower test is triggered only when the police have intentionally employed a “question first” practice— which did not occur here—we need not address it further.

      . There are similarities between the Seibert plurality’s “continuum” analysis and the “single continuous chain of events” test long employed by this Court in successive interrogation cases. We emphasize, however, that our rule does not depend on the presence of intentional police misconduct, but is applied whenever a Mirandized statement follows an unwarned statement.


text:
    [833 NE2d 255, 800 NYS2d 112]
    In the Matter of Donald Harner, Respondent, v County of Tioga, Appellant.
    Argued June 8, 2005;
    decided June 30, 2005

      POINTS OF COUNSEL

      Levene Gouldin & Thompson, LLP, Binghamton (Jason M. Carlton of counsel), for appellant.
    I. The Appellate Division’s decision below misapplied the prior holdings of this Court and improperly analyzed the question of whether the Due Process Clause in the New York and United States Constitutions had been satisfied. (Mullane v Central Hanover Bank & Trust Co., 339 US 306; Dusenbery v United States, 534 US 161; Kennedy v Mossafa, 100 NY2d 1; Matter of Zaccaro v Cahill, 100 NY2d 884.) II. When the proper balancing test is conducted in the instant case, the County of Tioga’s actions were reasonable and due process certainly was achieved. (Kennedy v Mossafa, 100 NY2d 1.) III. The Appellate Division’s holding as to what constitutes a reasonable search of the public record places an unreasonable burden upon county governments and in most cases such requirements will not yield the location of a correct address for the property owner. (Kennedy v Mossafa, 100 NY2d 1; Mullane v Central Hanover Bank & Trust Co., 339 US 306.) IV The Appellate Division’s determination that there is no difference for purposes of due process between mail which is returned to a county as “undeliverable” and mail which is returned to the county and marked “unclaimed” is patently incorrect for the reason that it ignores the important difference between these two labels; moreover, the Appellate Division’s holding that there is no difference for purposes of due process calls into question the constitutionality of another important state statute. (Kennedy v Mossafa, 100 NY2d 1; Cummins-Allison Corp. v Bargarnik, 146 Misc 2d 1042; Cohen v Banks, 160 Misc 2d 159; Matter of Ageloff, 274 AD2d 179.)

      Holmberg, Galbraith, Van Houten & Miller, Ithaca (Dirk A. Galbraith of counsel), for respondent.
    I. Respondent failed to provide petitioner with notice of the tax foreclosure proceeding as required by Real Property Tax Law § 1125. (Kennedy v Mossafa, 100 NY2d 1; Akey v Clinton County, N.Y., 375 F3d 231; Mullane v Central Hanover Bank & Trust Co., 339 US 306; Matter of Zaccaro v Cahill, 100 NY2d 884.) II. A reasonable search of the public record would have revealed petitioner’s address. (Kennedy v Mossafa, 100 NY2d 1; Matter of City of Newburgh [Chase Mtge. Co.W.], 291 AD2d 405; Sendel v Diskin,
      277 AD2d 757; Akey v Clinton County, N.Y., 375 F3d 231.) III. Respondent is obligated to conduct a search of the public record for petitioner’s correct address when the notice of foreclosure is returned as “unclaimed.” (Kennedy v Mossafa, 100 NY2d 1; Prisco v County of Greene, 289 AD2d 681.) IV The failure of petitioner to investigate the status of his tax bills is no defense to this proceeding. (Matter of Zaccaro v Cahill, 100 NY2d 884; Kennedy v Mossafa, 100 NY2d 1; Mennonite Bd. of Missions v Adams, 462 US 791; Seine Bay Realty v Jones, 112 AD2d 573; Prisco v County of Greene, 289 AD2d 681.)
   OPINION OF THE COURT

ClPARICK, J.

Once again we consider whether a county provided a property owner constitutionally adequate notice of a foreclosure proceeding upon a tax delinquency. Applying the test set forth in Kennedy v Mossafa (100 NY2d 1 [2003]), we conclude that due process was satisfied in this case where the notices of foreclosure sent by certified mail pursuant to RPTL 1125 (1) (a) were returned “unclaimed,” but. the ordinary mailings were not, and the County took no steps to obtain an alternative address.

In 1982, petitioner Donald Harner purchased the property at issue, a single family residence located at 34 West Tioga Street, Town of Spencer, Tioga County. Approximately eight years later, in 1990, Harner agreed to convey the subject property to George and Glenda Winnie by land contract, which obligated the Winnies to pay all real property taxes and assessments levied on the premises. Harner remained owner of record on the relevant tax rolls of the Town of Spencer.

In 1993, the tax rolls demonstrated that Harner’s mailing address for purposes of the subject property was 105 Auburn Road, Town of Lansing, Tompkins County. In 1994, the tax rolls were amended to change his address to “Harner, Donald, c/o Glenda Winnie, 34 West Tioga St, PO Box 505, Spencer, NY 14883.” Both Harner and Mrs. Winnie deny requesting this address change. However, as it appeared in the tax rolls, the County of Tioga subsequently mailed all tax hills and notices regarding the property to the Town of Spencer address.

In 1996 and again in 1998, the County commenced tax foreclosure proceedings against the subject property sending all notices to Harner care of the Winnies at 34 West Tioga Street, Spencer, New York. While Harner denies knowledge of those proceedings, the property was redeemed on both occasions. In December 2002, the County instituted a third tax foreclosure proceeding. The County mailed notice, by certified mail, and ordinary first class mail to Harner at the Spencer address, which appeared on the tax rolls. In addition, the County published notice of the foreclosure proceeding in a local newspaper and posted notice in the Tioga County Courthouse and the offices of the County Clerk and County Treasurer (see RPTL 1124).

The County later amended its petition and notice of foreclosure, and similarly mailed the amended notice by both certified and first class mail. It also published and posted public notices. Eventually, however, the post office returned both certified mailings of the original notice and the amended notice, each stamped with the notation “unclaimed.” The County mailed another copy of the amended petition as well as subsequent notices regarding the foreclosure to the Town of Spencer address via first class mail. The first class mailings were never returned to the County.

In May 2003, upon the failure of anyone to redeem the property, the County acquired title to the premises. Thereafter, Harner commenced this CPLR article 78 proceeding for a judgment setting aside the tax deed and declaring him the owner of the property with the right to redeem it. Supreme Court dismissed the petition on the ground that the County satisfied the notice requirements of RPTL 1125 and due process. The Appellate Division reversed, on the law, and granted the petition holding that the notice failed to satisfy due process requirements. By analogy to returned mail that is marked “undeliverable,” the Court reasoned that the “unclaimed” notation on the certified mailings alerted the County to the possibility of inadequate notice and thereby required it to conduct a reasonable search of the public record beyond the relevant tax rolls. We granted leave, and now reverse.

Under both the federal and state constitutions, the State may not deprive a person of property without due process of law (US Const 14th Amend; NY Const, art I, § 6). It is well settled that the requirements of due process are satisfied where “notice [is] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” (Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314 [1950]; see also Kennedy v Mossafa, 100 NY2d 1, 9 [2003]). Due process is a flexible concept, requiring a case-by-case analysis that measures the reasonableness of a municipality’s actions in seeking to provide adequate notice. A balance must be struck between the State’s interest in collecting delinquent property taxes and those of the property owner in receiving notice (see Kennedy, 100 NY2d at 9; see also Matter of Zaccaro v Cahill, 100 NY2d 884, 890 [2003]). In striking such balance, the courts may take “into account the status and conduct of the owner in determining whether notice was reasonable” (Kennedy, 100 NY2d at 11, citing Matter of ISCA Enters. v City of New York, 77 NY2d 688, 700 [1991]).

Applying these principles, we recently held that notice in a tax foreclosure proceeding was sufficient where the county mailed notice to the address on the tax roll but did not search the public record after the notice was returned as “ ‘not deliverable as addressed unable to forward’ ” (Kennedy, 100 NY2d at 5). We recognized that generally the municipality should conduct a reasonable search of the public record when the notice is returned undeliverable. However, we concluded that there “the attempted personal notice, coupled with posting and publication, satisfied due process” (id. at 11). There, among other things, the plaintiffs failure to update her address—and her payment of previous bills delivered to the challenged address— gave the county reason to believe that it had her correct contact information.

Considering all the relevant factors, the instant facts present an even stronger case for a finding that the notice procedure employed satisfied due process. The County was not required to do more. Here, pursuant to RPTL 1125 (1) (a), the County mailed notices to Harner by certified mail. The County also mailed notices by first class mail, and both published and posted public notices of the foreclosure proceeding. Only the certified mailings were returned as “unclaimed,” which for purposes of the Postal Service means that the “[a]ddresee abandoned or failed to call for [the] mail” (United, States Postal Service Domestic Mail Manual part 507, exhibit 1.4.1 <http://pe.usps.gov/ text/dmm300/507.htm> [last updated June 9, 2005], cached at <http://www.courts.state.ny.us/reporter/webdocs/USPS _DMM_part507.htm>). Given the implication of such endorsement—which does not on its face indicate that an address is invalid as the notation “undeliverable” implies—and that none of the first class mailings were returned, the County reasonably believed that Harner was attempting to avoid notice by ignoring the certified mailings.

Harner was listed as record owner of the property on the relevant tax rolls for eight years preceding this foreclosure action without any question ever having been raised about the accuracy of his mailing address. To be sure, the subject premises had twice before been redeemed upon notice delivered to the address appearing therein. Further, the unrecorded land contract provided that the Winnies were to be held responsible for the taxes levied on the subject property. However, Harner’s reliance on the Winnies in this manner had no effect on his status as record owner of the premises. Clearly, the private contract— absent the recording of a deed or other public filing—did not apprise the County that it no longer had the proper address for tax collection purposes.

Harner’s contention—that he was unaware that his mailing address on the tax rolls was improperly changed from his residential address in Lansing to the Spencer address—is of no consequence under the circumstances presented. He certainly can be said to have acquiesced in this address change. The address change occurred in 1994, and from that time until 2002—when this tax foreclosure proceeding was instituted—Harner made no attempt to verify his mailing address with the County. This despite his claim not to have received any tax bills during the relevant period.

As record owner, Harner bore the responsibility of updating his address to protect his ownership interests. His failure to fulfill this duty does not render the County’s procedures constitutionally infirm as it attempted personal notice through both certified and first class mailings, fully complying with RPTL 1125 (1) (a), and published and posted public notices as also required by statute (RPTL 1124). Thus, under the circumstances of this case, the notice procedures satisfied due process.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order reversed, etc.

      . Section 1125 (1) provides in pertinent part:
      “The enforcing officer shall on or before the date of the first publication of the notice above set forth cause a notice to be mailed to (a) each owner by certified mail and any other person by ordinary first class mail whose right, title, or interest was a matter of public record as of the date the list of delinquent taxes was filed, which right, title or interest will be affected by the termination of the redemption period, and whose name and address are reasonably ascertainable from the public record . . . .”
      Former RPTL 1125 (1) (a), which was effective at the time of the Kennedy decision, required service by first class mail, not certified mail.

      . The record is silent as to who redeemed the property.