author: Ciparick, J. Graffeo, J.

text:
    [959 NE2d 479, 935 NYS2d 542]
    The People of the State of New York, Appellant, v John Grant, Respondent.
    Argued September 14, 2011;
    decided October 20, 2011

      POINTS OF COUNSEL

      Daniel M. Donovan, Jr., District Attorney, Staten Island (Morrie I. Kleinbart and David Frey of counsel), for appellant.
    Defendant’s explicit statement that he had a gun and would shoot if the bank teller would not comply with his demand for money was competent to prove defendant’s actual possession of a dangerous instrument. (People v Pena, 50 NY2d 400, 449 US 1087; People v Bello, 92 NY2d 523; People v Jennings, 69 NY2d 103; People v Swamp, 84 NY2d 725; People v Deegan, 69 NY2d 976; People v Pettigrew, 14 NY3d 406; People v Peralta, 3 AD3d 353; People v Brewster, 100 AD2d 134; Reed v McCord, 160 NY 330; People v Caban, 5 NY3d 143.)

      Steven M. Statsinger, New York City, for respondent.
    Since the People introduced no evidence, apart from the threat, that John Grant actually possessed a firearm, and did not instruct the grand jury that actual possession was an element of the offense, the decision appealed from should be affirmed. (People v Ford, 11 NY3d 875; People v Pena, 50 NY2d 400; People v Jennings, 69 NY2d 103; People v Swamp, 84 NY2d 725; People v Mayo, 36 NY2d 1002; People v Deegan, 69 NY2d 976; People v Hilton, 145 AD2d 352; People v Moore, 185 AD2d 825; People v Robare, 109 AD2d 923; People v Stefano, 134 AD2d 906.)
   OPINION OF THE COURT

Ciparick, J.

In this appeal, we are called upon to determine whether defendant’s written statement threatening to shoot a robbery victim with a gun constitutes legally sufficient evidence that he was in actual possession of a dangerous instrument at the time of the crime to support the charge of robbery in the first degree (Penal Law § 160.15 [3]). We hold that such statement, by itself, is legally insufficient.

Defendant was indicted on one count of first-degree robbery and on one count of grand larceny in the fourth degree (Penal Law § 155.30 [1]). During the grand jury proceeding, the People adduced evidence that on the afternoon of May 22, 2008, defendant entered a Staten Island bank, approached a teller assigned to one of the stations in the front and passed her a handwritten note. The note, written on the back of a deposit slip, stated, “I have A Gun Fill bag, Dont say anything, or I’ll shoot.” The teller, who did not testify in the grand jury that she saw a weapon, complied with the note’s directive and filled defendant’s bag with the money she had at her station. The teller returned the bag containing $1,810 to defendant, but retained the demand note. Once defendant walked out of the bank with the money, the teller locked the doors and notified the police.

Sometime thereafter, a detective responded to the scene. The detective retrieved video stills from the bank’s surveillance equipment depicting defendant. An investigation ensued and four months later, the police took defendant into custody and placed him in a lineup. The teller viewed the lineup and identified defendant as the perpetrator of the bank robbery.

In an omnibus motion, defendant sought a dismissal of the two-count indictment or a reduction of its counts. Citing our decision in People v Pena (50 NY2d 400 [1980]), defendant argued that the demand note indicating that he was armed with a loaded gun was insufficient to establish the element of actual possession of a dangerous instrument necessary to sustain the first-degree robbery charge. The People opposed the motion, contending that “[d]efendant’s own statement — an admission against penal interest — was that he had a loaded gun, capable of being used to shoot the teller, and thus was readily capable of causing death or other serious physical injury.” Alternatively, the People suggested that actual possession of a dangerous instrument was not an element of first-degree robbery under subdivision (3) of the statute and invited the motion court to determine that we decided Pena incorrectly.

Supreme Court, after inspecting the minutes from the grand jury proceeding, upheld the fourth-degree grand larceny charge, but reduced the first-degree robbery count to robbery in the third degree (Penal Law § 160.05). Relying on Pena, it concluded that defendant’s written statement threatening that he had a gun and that he would shoot, “without more,” was legally insufficient to support a charge of first-degree robbery.

The Appellate Division, with one Justice dissenting, affirmed the order of Supreme Court. The court held that the People failed to establish that defendant was in “actual possession” of a dangerous instrument and that he was “readily capable of causing death or other serious physical injury” (People v Grant, 70 AD3d 711, 712 [2d Dept 2010]).

The dissenting Justice would have reversed the order of Supreme Court and reinstated the indictment for first-degree robbery. The Justice disagreed with the “proposition that a defendant’s own words in the course of a robbery can never establish his or her actual possession of an unseen dangerous instrument” (id. at 715). The dissenting Justice granted the People’s application for leave to appeal to our Court (14 NY3d 895 [2010]) and we now affirm.

“To dismiss [or reduce] an indictment on the basis of insufficient evidence before a Grand Jury, a reviewing court must consider ‘whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury’ ” (People v Bello, 92 NY2d 523, 525 [1998], quoting People v Jennings, 69 NY2d 103, 114 [1986]). The Legislature has defined legally sufficient evidence as “competent evidence which, if accepted as true, would establish every element of an offense charged” (CPL 70.10 [1]). “In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” (Bello, 92 NY2d at 526). Thus, a reviewing court must determine “ ‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the Grand Jury could rationally have drawn the guilty inference’ ” (id., quoting People v Deegan, 69 NY2d 976, 979 [1987]).

With this framework in place, we now examine the elements necessary to establish the charge of first-degree robbery under Penal Law § 160.15 (3). The statute provides that

“[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . .
“[u]ses or threatens the immediate use of a dangerous instrument.”

On appeal, defendant does not challenge that the evidence presented to the grand jury, if true, supplies proof that he forcibly stole property as defined by the Penal Law. Rather, he contends that the grand jury did not consider sufficient evidence establishing that he was in actual possession of a dangerous instrument at the time of the incident. The People, in turn, have abandoned their argument made in the motion court that actual possession of a dangerous instrument is not a required element of first-degree robbery under subdivision (3) of the statute. They maintain, however, that defendant’s handwritten note furnishes sufficient proof that he was in actual possession of a loaded gun. We agree with defendant.

In Pena, the defendants challenged the legal sufficiency of their convictions for first-degree robbery, charged under the theory that, acting in concert, they forcibly stole property and used or threatened immediate use of a dangerous instrument (see 50 NY2d at 405; see also Penal Law § 160.15 [3]). There, defendants Pena and Turrell accosted a man in a park, looking for money (see 50 NY2d at 406). With his hand enclosed in a brown paper bag, Turrell thrust his arm toward the victim and threatened to shoot if he ran away (see id.). It appeared to the victim that Turrell was holding a gun (see id.). Meanwhile, Pena instructed the victim to surrender his coat and demanded $10 from him (see id.). Before the defendants retreated, they cautioned the victim that if he contacted the police, he would be killed (see id.). The victim ignored the defendants’ warning and notified the police (see id.). The victim accompanied the police on a search and, a short time thereafter, he sighted the defendants standing side-by-side three blocks from the park (see id.). Pena was wearing the victim’s coat and was holding the same type of brown paper bag that Turrell wielded during the robbery (see id.). The police arrested the defendants and recovered the bag that Pena was holding, which contained a knife (see id.). The People introduced both the bag and the knife into evidence at trial (see id.).

In analyzing the legal sufficiency of the evidence in Pena, we noted as a threshold matter that first-degree robbery, as charged under subdivision (3) of the statute, required a finding “that Turrell actually possessed a dangerous instrument at the time of the crime” (id. at 407). We observed that the statute, as amended, mandated this showing “on the theory that it was the employment of such an instrumentality that was significant” to sustain the charge (id. at 407 n 2). Viewing the evidence in the light most favorable to the People, we concluded that all the circumstantial proof adduced at trial established a prima facie case that Turrell had a knife in his possession at the time of the robbery and that he, alongside Pena, used that knife to threaten the victim and forcibly steal property (see id. at 409).

Following our decision in Pena, all four departments of the Appellate Division have adopted the rule that “[a] defendant’s statement that he has a weapon or a threat that he will kill or harm his alleged victim is insufficient, without more, to sustain a conviction for an offense requiring proof that the defendant used or threatened to use a dangerous instrument” (People v Peralta, 3 AD3d 353, 355 [1st Dept 2004]). For example, in People v Hilton (147 AD2d 427 [1st Dept 1989]), the victim testified that when she opened the door to her mother’s apartment, she saw the defendant standing within an arm’s length of her (see id. at 429). She further explained that the defendant claimed to have a gun and threatened to kill her and her daughter if she did not acquiesce to his demands for money (see id.). Neither the victim nor her daughter saw any weapon (see id.). Under these facts, the court concluded that the People “failed to prove by sufficient evidence that defendant actually possessed” a dangerous instrument (id. at 430; see also People v Moore, 185 AD2d 825, 826 [2d Dept 1992]; People v White, 155 AD2d 934, 934 [4th Dept 1989]; People v Robare, 109 AD2d 923, 924 [3d Dept 1985]).

Until today, we have not had the occasion to determine whether a defendant’s statement that he possesses a dangerous instrument, standing alone, constitutes legally sufficient evidence that he is in actual possession of such weapon to support the charge of first-degree robbery under subdivision (3) of the statute. In Ford, a case we decided nearly three years ago, the defendant attempted to challenge the legal sufficiency of his first-degree robbery conviction on this basis. There, in the course of the robbery at issue, the defendant stated that he had a knife while simultaneously moving his hand toward his pants pocket (see 11 NY3d at 878). We examined the proof adduced at trial “in light of the court’s charge as given without exception” and observed that the court did not instruct the jury that it had to find the defendant in actual possession of the knife at the time of the robbery (id.). Constrained by the court’s unchallenged charge (see People v Sala, 95 NY2d 254, 260-261 [2000]), we concluded that the defendant’s “acts, considered together, provide[d] legally sufficient evidence to establish that defendant used or threatened the immediate use of a knife in the course of the robbery” (11 NY3d at 878 [internal quotation marks omitted]). However, given our disposition in Ford, we “expressed] no opinion as to whether the proof in [that] case was sufficient to establish actual possession” (id. at 878 n 2).

We now hold, in accord with Appellate Division precedent, that a defendant’s statement that he is in possession of a dangerous instrument, standing alone, does not supply sufficient proof to establish actual possession of a dangerous instrument at the time of the crime to support the charge of first-degree robbery. Rather, we conclude that this type of statement— whether in the form of a verbal threat or a handwritten note— only establishes the threat of physical force necessary to support the charge of third-degree robbery. Accordingly, the People must furnish additional proof, separate and apart from a defendant’s statement, that would permit a rational factfinder to infer that a defendant was in actual possession of a dangerous instrument (see Bello, 92 NY2d at 526). To hold otherwise would blur the distinction created in the carefully calibrated statutory scheme between the lesser included offense of third-degree robbery, a class D nonviolent felony (see Penal Law § 160.05), and the aggravated charge of first-degree robbery, a class B violent felony (see Penal Law § 160.15 [3]; § 70.02 [1] [a]). Indeed, as we stated in Pena, it is the actual “employment” of a dangerous instrument that elevates the use or threat of physical force to first-degree robbery (see 50 NY2d at 407 n 2).

Applying this standard to the facts in this case, we agree with the courts below that the evidence presented to the grand jury did not support the charge of first-degree robbery under subdivision (3) of the statute. The only proof that the People introduced in the grand jury that defendant was in actual possession of a dangerous instrument — here, a gun — was the handwritten demand note he passed to the victim (see e.g. Hilton, 147 AD2d at 429; cf. Pena, 50 NY2d at 409). Absent some other corroboration that defendant actually possessed a dangerous instrument, “the Grand Jury could [not] rationally have drawn the guilty inference” that defendant committed the crime of first-degree robbery (Bello, 92 NY2d at 526). Therefore, Supreme Court properly reduced that count of the indictment to third-degree robbery.

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

Graffeo, J.

(dissenting). The issue in this case is whether the evidence before the grand jury was legally sufficient to establish the charge of first-degree robbery under Penal Law § 160.15 (3). The proof to support the element that defendant actually possessed a dangerous instrument consisted of his own statements made in the course of the bank robbery, when he indicated that he was armed with a gun and would shoot if his demand for money was not satisfied. Because I disagree with the majority’s conclusion that this evidence of possession was legally insufficient, I respectfully dissent.

As relevant here, a person is guilty of robbery in the first degree when he forcibly steals property and “[u]ses or threatens the immediate use of a dangerous instrument” during the commission of the crime (Penal Law § 160.15 [3]). A dangerous instrument means “any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [13]). Although Penal Law § 160.15 (3) does not expressly require actual possession of a dangerous instrument as an element of the crime, we engrafted such a requirement in People v Pena (50 NY2d 400 [1980], cert denied 449 US 1087 [1981]). More recently, we left open the question posed here — whether a defendant’s statement identifying the type of dangerous instrument he possesses coupled with a threat to use it constitutes legally sufficient evidence of possession under the first-degree robbery statute (see People v Ford, 11 NY3d 875, 878 n 2 [2008]).

As the majority points out, there is Appellate Division authority supporting a special rule for Penal Law § 160.15 (3) cases, which has been articulated as follows: “A defendant’s statement that he has a weapon or a threat that he will kill or harm his alleged victim is insufficient, without more, to sustain a conviction for an offense requiring proof that the defendant used or threatened to use a dangerous instrument” (People v Peralta, 3 AD3d 353, 355 [1st Dept 2004], lv denied 2 NY3d 764 [2004]). Although the majority embraces such a rule, this approach is both unwarranted and inconsistent with our precedents.

Certainly, the rule described in Peralta cannot be traced to our decision in Pena. In Pena, defendant Turrell made a verbal threat — telling the victim “if you run, I’ll shoot you” — while brandishing his arm inside of a brown paper bag (Pena, 50 NY2d at 406). At trial, however, the People’s theory was that the dangerous instrument Turrell possessed during the robbery was not a gun but the knife later recovered from defendant Pena, who was holding a paper bag with a knife when the two were apprehended shortly after the crime. The People therefore did not rely on Turrell’s statement to establish possession of a weapon since a knife had been recovered from one of the suspects. And, although we concluded that actual possession of a dangerous instrument was a required element in Pena, we did not suggest that an admission corresponding to the weapon alleged to have been possessed would be viewed as insufficient to support the conviction.

Moreover, the Peralta rule is contrary to the well-established principle that “[a]dmissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever, or to whomsoever made” (People v Chico, 90 NY2d 585, 589 [1997] [internal quotation marks and citations omitted]; see also People v Casey, 95 NY2d 354, 362 [2000]). Indeed, an admission constitutes “direct proof” of the matter asserted (People v Rosner, 67 NY2d 290, 295 [1986]; see also People v Licitra, 47 NY2d 554, 558-559 [1979], rearg denied 53 NY2d 938 [1981]; Prince, Richardson on Evidence § 8-202, at 511 [Farrell 11th ed] [recognizing that “an admission is received on trial as evidence of the fact stated”]).

Consistent with these precedents, I believe that a grand jury can rationally draw the inference that Pena’s actual possession requirement is satisfied where a defendant, by his own statements or admissions, claims to possess a weapon, identifies the type of weapon and includes a threat to use the weapon to cause harm to the victim if the victim does not comply with the demand. The proof presented to the grand jury in this case satisfied these criteria. Defendant handed the bank teller a note stating, “I have A Gun Fill bag, Dont say anything, or I’ll shoot.” In effect, defendant admitted that he possessed a weapon — a gun — and threatened to fire the gun if his demands were not met. I see no principled reason why a jury could not reasonably credit defendant’s admission that he was carrying a gun, the only element disputed by defendant. Consequently, under the circumstances of this case, I would hold that “the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” (People v Bello, 92 NY2d 523, 525 [1998] [internal quotation marks and citations omitted]).

To be sure, there may be cases in which a defendant’s statement is too vague to establish possession of a dangerous instrument. For example, a defendant’s threat to injure or kill a robbery victim, without more, would clearly be deficient. The evidence would also fall short where a defendant does not indicate the type of weapon he is claiming to possess or fails to adequately communicate the threat. In this case, however, defendant clearly asserted that he possessed a gun and would shoot if the bank teller did not empty her money drawer.

This is also not a case in which the defendant was apprehended at the scene immediately after the crime with no weapon in his possession. Here, defendant was not arrested until months after the bank robbery, which gave him ample opportunity to dispose of the gun.

Finally, this Court has already departed from the plain language of Penal Law § 160.15 (3) by adding an actual possession requirement in Pena. The majority now takes a further step away from the language of the statute by precluding the first-degree prosecution of individuals who undeniably “threaten[ ] the immediate use of a dangerous instrument” during the course of a robbery. This is so because the majority’s conclusion that a jury, as a matter of law, may not rely on a defendant’s own statements to find actual possession of a weapon under Penal Law § 160.15 (3) effectively means that a defendant must actually produce the weapon in clear view during the course of the robbery or be arrested at the scene while still in possession of the weapon. Hence, the majority is rewarding those who conceal dangerous instruments during robberies and avoid apprehension long enough to rid themselves of their weapons since they can be charged only with third-degree robbery. Why encourage weapon concealment and create this disparity when it is required neither by the language of the statute nor the Pena rule?

Because I conclude that defendant’s admission provided legally sufficient evidence, not only of a threat to use a dangerous instrument but also of his actual possession of the dangerous instrument, I would reverse and reinstate the indictment for first-degree robbery.

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

Order affirmed.

      . “A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force” (Penal Law § 160.00).

      . In People v Ford (11 NY3d 875 [2008]), we recently reaffirmed the principles we announced in Pena and concluded “that the use or threatened use” language of first-degree robbery under Penal Law § 160.15 (3) “requires proof of actual possession” of a dangerous instrument (11 NY3d at 877 n 1 [internal quotation marks omitted]).

      . Following our decision in Ford, the criminal jury instructions for first-degree robbery under Penal Law § 160.15 (3) were amended. The instruction now includes language that the People must prove defendant “possessed a dangerous instrument” (CJI2d[NY] Penal Law § 160.15 [3] [rev Jan. 5, 2009]).

      . It is important to note the significant sentencing disparity between a conviction for first-degree robbery and third-degree robbery wherein offenses of increasing severity expose a defendant to correspondingly increased punishment. Following a conviction for first-degree robbery, a first time felony offender is subject to a minimum determinate sentence of five years imprisonment and a maximum imprisonment sentence of 25 years, followed by five years postrelease supervision (see Penal Law § 70.02 [3] [a]; § 70.45 [2]). A defendant convicted of third-degree robbery, by contrast, is subject to an indeterminate term of imprisonment not to exceed seven years (see Penal Law § 70.00 [2] [d]). The statutory scheme also permits a court to impose a sentence of five years probation (see Penal Law § 65.00 [3] [a] [i]) or a definite sentence not to exceed one year (see Penal Law § 70.00 [4]).

      . It appears that the dissent’s discomfort with our analysis stems from the fact that, in Pena, we “engrafted” an actual possession of a dangerous instrument requirement to support a conviction for first-degree robbery under subdivision (3) of the statute (dissenting op at 621). According to the dissent, the statute, as amended in 1967, “strongly suggested that the Legislature did not intend for actual possession to remain an element” (dissenting op at 623 n 3). As the dissent concedes, the People no longer advance that argument on appeal (see id.).

      In any event, the dissent posits that defendant’s admission, “I have A Gun Fill bag, Dont say anything, or I’ll shoot,” made in the course of the robbery, supplies adequate proof that he actually possessed an operable gun. Under that rationale, the evidence presented would also supply sufficient proof that defendant was “armed with a deadly weapon” (Penal Law § 160.15 [2]). Tellingly, the People did not instruct the grand jury to consider this offense following their presentation of evidence. Their decision not to submit this charge comes as no surprise since the crux of their argument before the motion court was that actual possession of a dangerous instrument was not a required element under subdivision (3).

      . Ironically, it was not necessary to formulate this rule in Peralta because there was no such admission in that case. Rather, the defendant there was alleged to have placed a “hard object” against the victim’s hack, but there was no allegation of any admission made by the defendant indicating that he possessed a weapon (Peralta, 3 AD3d at 354).

      . To the extent the People were required to show that the gun was operable to satisfy the “dangerous instrument” requirement of Penal Law § 160.15 (3), defendant’s threat to shoot constituted legally sufficient evidence of its operability (see People v Dodt, 61 NY2d 408, 415 [1984]; United States v Marshall, 427 F2d 434, 437 [2d Cir 1970]; see also People v Pettigrew, 14 NY3d 406, 409 [2010]).

      . Although the Court in Pena examined some of the earlier legislative history underlying Penal Law § 160.15 (3) (see Pena, 50 NY2d at 407 n 2), it failed to discuss what is in my view the most pertinent legislative amendment. The 1965 version of the statute provided that a person was guilty of first-degree robbery if, during the course of the robbery, he “[i]s armed with and uses or threatens the immediate use of a dangerous instrument” (L 1965, ch 1030 [emphasis added]). Clearly, the 1965 version contained an actual possession requirement. In 1967, however, the Legislature amended the statute by deleting the phrase “[i]s armed with” (see L 1967, ch 791, § 22), resulting in the current wording of the statute that strongly suggested that the Legislature did not intend for actual possession to remain an element. That being said, the People do not ask us on this appeal to revisit Pena.

      . Penal Law § 160.15 (4) separately specifies that a person is guilty of first-degree robbery if he displays what appears to be a firearm during the commission of the crime.


source: Caselaw Access Project

author: Jones, J. Pigott, J.

license: Public Domain

text:
    [958 NE2d 540, 934 NYS2d 362]
    Allen Simon et al., Respondents, v Sol M. Usher et al., Appellants, and Sheldon Alter et al., Respondents.
    Argued September 15, 2011;
    decided October 20, 2011

      POINTS OF COUNSEL

      Kopff, Nardelli & Dopf LLP, New York City (Martin B. Adams of counsel), for appellants.
    I. A defendant who mails a demand to change venue is entitled under CPLR 2103 (b) (2) to an additional five days above and beyond the 15-day statutory time period under CPLR 511 to move to change venue as of right. (Matter of Saunders v Smith, 99 AD2d 671; Cahen v Boyland, 1 NY2d 8; Oliver v Alcog, 155 AD2d 1001; O’Connor v Lansdown Entertainment, 231 AD2d 970; Thompson v Cuadrado, 277 AD2d 151; Singh v Becher, 249 AD2d 154.) II. Public policy supports a ruling that a motion to change venue as of right is timely where defendant serves by mail a demand to change venue and the motion is served within 20 days of service of the demand to change venue. III. The trial court properly transferred venue and the place of trial from Bronx County to Westchester County, as respondents reside in Westchester County, and the basis for respondents’ selection of venue in Bronx County was improper. (Toms v Estate of Hughes, 177 AD2d 994; Simpson v Sears, Roebuck & Co., 212 AD2d 473.)

      Gair, Gair, Conason, Steigman, Mackauf Bloom & Rubinovoitz, New York City (Howard S. Hershenhorn and Rhonda E. Kay of counsel), for Allen Simon and another, respondents.
    I. Absent specific provision to the contrary, the party who mails a document is not entitled to the extra five days under CPLR 2103 (b) (2). (Sultana v Nassau Hosp., 188 AD2d 647; Corradetti v Dales Used Cars, 102 AD2d 272; Thompson v Cuadrado, 277 AD2d 151; Trustees of Columbia Univ. v Bruncati, 77 Misc 2d 547; Matter of Harvey v New York State Dept. of Envtl. Conservation, 235 AD2d 625; Trump v Cheng, 2009 NY Slip Op 30014[U].) II. Application of CPLR 511 (b) as written will not result in hardship or prejudice to defendants moving to change venue as of right. (Too Pyo Hong v Byung Wha Yoo, 231 AD2d 657.)

      Rende, Ryan & Downes, LLP, White Plains (Roland T. Koke
      of counsel), for Sheldon Alter and others, respondents.
    I. The lower court decision which changed venue from. Bronx County to Westchester County should be reinstated. (Binder v Metropolitan St. Ry. Co., 68 App Div 281; Peerless Motor Co. v Hambleton, 219 App Div 268; Chason v Airways Hotel, 18 Misc 2d 96; Hughes v Nigro, 108 AD2d 722; Williams v Albany Med. Ctr. Hosp., 86 AD2d 915; Vacant Lots v Town Bd. of Town of Liberty, 116 AD2d 865; Podolsky v Nevele Winter Sports, 233 AD2d 605; Tri-City Furniture Dist. v Reubens, 79 AD2d 886.) II. Since defendant seeking to move venue has a choice to file a motion in the county where the venue is desired in the event plaintiff fails to meaningfully oppose the demand, the motion is responsive and thus entitled to an extension of time under the Civil Practice Law and Rules.
   OPINION OF THE COURT

Jones, J.

The question presented for our review is whether the five-day extension under CPLR 2103 (b) (2) applies to the 15-day time period prescribed by CPLR 511 (b) to move for change of venue when a defendant serves its demand for change of venue by mail. We hold that it does.

On July 17, 2009, plaintiffs Allen and Barbara Simon commenced this medical malpractice action against defendants in Supreme Court, Bronx County. Defendants Sol M. Usher, Sol M. Usher, M.D., P.C., Maxwell M. Chait, White Plains Hospital Center and Hartsdale Medical Group, P.C., (collectively, the Usher defendants) served their verified answers and demands to change venue to Westchester County on August 20, 2009. Twenty days later, on September 9th, the Usher defendants moved to change venue to Westchester County on the grounds that, except for Usher and Usher, M.D., P.C., all of the defendants and the plaintiffs reside in Westchester County; Usher’s and Usher, M.D., P.C.’s primary offices are in Westchester County; and plaintiff Allen Simon received the medical care at issue in Westchester County. The remaining defendants Sheldon Alter, Mid-Westchester Medical Associates, LLR Westchester Medical Group, PC. and Marianne Monahan served their answer on September 3rd and filed an affirmation in support of the motion to change venue on September 15th.

Supreme Court granted the motion to change venue to Westchester because “none of the parties to this action reside in Bronx County.” The Appellate Division unanimously reversed and denied the motion (73 AD3d 415 [2010]). The court, among other things, rejected the Usher defendants’ motion for a change of venue as untimely because it was made 20 days after service of the demand. It concluded that CPLR 2103 (b) (2)’s five-day extension for time periods measured from service by mail did not apply to CPLR 511. The Appellate Division granted the Usher defendants leave to appeal to this Court and certified the following question for review: “Was the order of this Court, which reversed the order of the Supreme Court, properly made?” (2010 NY Slip Op 92286[U] [2010]). We answer the certified question in the negative and now reverse.

When construing a statute, we must begin with the language of the statute and “give effect to its plain meaning” (Kramer v Phoenix Life Ins. Co., 15 NY3d 539, 550 [2010]). Pursuant to CPLR 511 (a), a defendant shall serve with the answer, or prior to service of the answer, a demand “for change of place of trial on the ground that the county designated for that purpose is not a proper county.” Subsection (b) permits defendant to “move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant.” CPLR 2103 (b) (2) provides “where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period.” “The extension provided in CPLR 2103 (b) (2) constitutes legislative recognition of and compensation for delays inherent in mail delivery” (Sultana v Nassau Hosp., 188 AD2d 647, 648 [2d Dept 1992]).

Here, defendants who served their motion papers by mail 20 days after they served their demand to change venue are entitled to a five-day extension of the 15-day period prescribed in CPLR 511 (b). Plaintiffs, citing Sultana, contend that defendants cannot rely upon section 2103 (b) (2) for the five-day extension because the motion did not constitute response papers. Section 2103 (b) contains no language restricting its application to instances where a party is responding to papers served by an adversary. Moreover, defendants are permitted to move to change venue only in the event that plaintiffs do not consent in writing within five days after service of the demand. Although the motion papers are not directly responding to papers served by plaintiffs, defendants are effectively responding to plaintiffs’ lack of consent to the change of venue. Simply put, defendants’ motion papers are not initiatory and, because the demand was served by mail, defendants were entitled to the benefit of section 2103 (b) (2)’s five-day extension.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of issues raised but not determined on the appeal to that court, and the certified question answered in the negative.

Pigott, J.

(dissenting). While I fear adding further confusion to what, up until now, seemed to be a fairly simple statute, I respectfully dissent from the judicial creation of what I will label an “anticipatory five-day rule” amending CPLR 2103 (b) (2).

On July 17, 2009, plaintiffs commenced this medical malpractice action against multiple defendants by filing their summons and complaint in Supreme Court, Bronx County, basing their choice of venue on the fact that defendant Sol M. Usher had a place of business in the Bronx. Defendants answered by mail on August 20, 2009 and, pursuant to CPLR 511 (b), simultaneously served a demand for a change of venue from Bronx County to Westchester County. Plaintiffs did not respond within five days after the date of service of the demand, i.e. by August 25, 2009. This permitted defendants, if they so chose, to move to change the place of trial by filing a motion in either Bronx or Westchester County on or before September 4, 2009. However, defendants’ motion was served by mail on September 9, 2009.

Plaintiffs objected, and I think properly so, that the motion was untimely, under CPLR 511 (b), which provides that a defendant that has served a written demand for a change of venue “may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent” (emphasis added). Defendants enlisted CPLR 2103 (b) (2), to argue that their motion was timely because it was served within 20 days of service of their demand, despite the fact that CPLR 511 specifies 15 days. Supreme Court, Bronx County, granted defendants’ motion to change the venue, but the Appellate Division reversed, and denied the motion, holding that defendants “were not entitled to the five-day extension in CPLR 2103 (b) (2) for time periods measured from service by mail” (73 AD3d 415 [1st Dept 2010]).

Under CPLR 2103 (b) (2), the statute being mangled here, “where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period.” The legislative history of the statute makes it abundantly clear that its purpose is to give a party, on whom a paper has been served by mail, additional time to respond, because of the delays inherent in mailing. The five-day extension was created in the early 1980s (L 1982, ch 20, § 1, eff Jan. 1, 1983); it had been three days before. At that time, the Advisory Committee on Civil Practice clearly described the extension as applying to a party’s “responding time” or “responding period” (1982 Rep of Advisory Comm on Civ Prac, reprinted in 1982 McKinney’s Session Laws of NY, at 2651). The Committee wrote that “[t]he traditional three days by which a responding period is extended when the paper to be responded to is served by mail has proved too short in recent years, as the mails have been increasingly delayed” (id. at 2651-2652 [emphasis added]). The legislative intent could not be more obvious. The purpose of CPLR 2103 (b) (2) was to compensate for mail delays, and allow an adverse party more time to assemble responsive papers.

The Appellate Division has understood this, writing that “[t]he extension provided in CPLR 2103 (b) (2) constitutes legislative recognition of and compensation for delays inherent in mail delivery” (Sultana v Nassau Hosp., 188 AD2d 647, 648 [2d Dept 1992], quoting Corradetti v Dales Used Cars, 102 AD2d 272, 273 [3d Dept 1984]) and “does not . . . benefit the party making the service by mail” (Thompson v Cuadrado, 277 AD2d 151, 152 [1st Dept 2000]; see also Matter of Harvey v New York State Dept. of Envtl. Conservation, 235 AD2d 625 [3d Dept 1997]). Consistently, Professor Siegel, recognizing the intent of CPLR 2103, has noted that the statute

“provides that whenever a period of time is measured from the service of a paper and the paper is served by mail, the party required to take the responsive step gets 5 additional days. This recognizes that the service was deemed complete upon posting and it compensates for the delay in mail delivery .... The 5 days are added to the stated period when any mail-served paper requires a responsive step within a stated period” (Siegel, NY Prac § 202, at 346 [5th ed] [emphases added]).

It is noteworthy that the Legislature, in the context of measuring time from the service of a judgment or order, has taken the trouble to add a provision that clarifies that “[w]here service of the judgment or order to be appealed from and written notice of its entry is made by mail . . . [under CPLR 2103], the additional days provided by such paragraphs shall apply to this action, regardless of which party serves the judgment or order with notice of entry” (CPLR 5513 [d]). This 1999 amendment to CPLR 5513 gives an additional five days to take an appeal when a notice of entry is served by mail, regardless of which party serves the notice of entry. The Legislature has not acted to alter statutes other than CPLR 5513, so as to make corresponding clarifications in areas other than appeals.

Here, defendants benefitted from the rule that papers are deemed served upon mailing — in this case on August 20. Plaintiffs, who would have received the papers some days after that, would have known that, while the statute requires a response within five days, i.e. by August 25, they could add five days and serve their response, if they chose to make one, on or before August 30. The five-day timetable is indisputably subject to extension under CPLR 2103 (b) (2), because it is a responsive deadline (Podolsky v Nevele Winter Sports, 233 AD2d 605, 605-606 [3d Dept 1996]; Hughes v Nigro, 108 AD2d 722, 723 [2d Dept 1985]). Defendants, on the other hand, were “not directly responding” to any papers, as the majority concedes (majority op at 628). Having no doubt marked plaintiffs’ August 30 deadline on their calendar, defendants had until September 4, to serve, by mail if they chose, their motion for change of place of trial. That they did not is, in my view, fatal to their motion.

Defendants argue that plaintiffs’ reading of CPLR 2103 (b) (2) creates practical difficulties for litigants. Given that plaintiffs have 10 days to decide about consent, the 15-day deadline for the motion means that defendants may have only five days between a service by mail of consent to change of venue and the motion deadline. If the mailing delay is three days, the time for preparing and filing the motion would end up being two days. Giving both parties the benefits of the extended period might be a good idea, practically. But one need only refer to CPLR 2214 (b), which allows reply papers to be served by mail one day before the return date of a motion, to know that the rules have not always been drafted with practicality in mind. In such a situation, an appellate court may signal the practical difficulties to the Legislature, so that it may consider amending the statute. But it is up to the Legislature to enact such a law.

In light of the legislative history and standard interpretations of CPLR 2103 (b) (2) in case law and commentary, I think it clear that section 2103 (b) benefits only the party responding to the service, and I would therefore affirm the order of the Appellate Division.

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

Order reversed, etc.


author: Pigott, J. Chief Judge Lippman

text:
    [959 NE2d 498, 935 NYS2d 561]
    The People of the State of New York, Appellant, v Makeda Davis, Respondent. The People of the State of New York, Appellant, v Fayola McIntosh, Respondent.
    Argued September 6, 2011;
    decided October 25, 2011

      POINTS OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City (Susan Gliner and Alan Gadlin of counsel), for appellant in the first and second above-entitled actions.
    As the trial court found, judicial authorization was not required before submitting the case to a second grand jury when the People presented the case to a first grand jury, announced that the case would be presented on more than one day, but were able to present only one witness during that session, and then had to withdraw the case due to witness unavailability. The Appellate Division erred when it found otherwise only because a legally sufficient case had been presented to the first grand jury. (People v Wilkins, 68 NY2d 269; People v Montanez, 90 NY2d 690; People v Cade, 74 NY2d 410; People v Gelman, 93 NY2d 314; People v Aarons, 2 NY3d 547; People v Santmyer, 255 AD2d 871.)

      The Freyberg Law Group, New York City (Mark L. Freyberg and Joel G. Kosman of counsel), for respondent in the first above-entitled action.
    The District Attorney violated CPL 190.75 by withdrawing an essentially completed case from the first grand jury and then resubmitting it, without leave of the court, to a second grand jury. (People v Huston, 88 NY2d 400; People v Wilkins, 68 NY2d 269; People ex rel. Flinn v Barr, 259 NY 104; People v Gelman, 93 NY2d 314; People v Bello, 92 NY2d 523; People v Deegan, 69 NY2d 976; People v Jennings, 69 NY2d 103; People v Schulz, 4 NY3d 521; People v McKinnon, 15 NY3d 311; Matter of Blancero v Brown, 216 AD2d 384, 86 NY2d 705.)

      Office of the Appellate Defender, New York City (Lily Goetz, Richard M. Greenberg and Joseph M. Nursey of counsel), for respondent in the second above-entitled action.
    The prosecution abused the grand jury process by re-presenting the case against Fayola McIntosh to a second grand jury panel, without judicial authorization, after unilaterally withdrawing the essentially completed case from another grand jury panel four months earlier. (People v Wilkins, 68 NY2d 269; People v Franco, 86 NY2d 493; People v Jones, 206 AD2d 82; People v Hemstreet, 234 AD2d 609; People v Dykes, 86 AD2d 191; People v Aarons, 2 NY3d 547; People v Gelman, 93 NY2d 314; People v Arroyo, 54 NY2d 567; People v Beckwith, 289 AD2d 956.)
   OPINION OF THE COURT

Pigott, J.

The primary issue on these appeals is whether the People’s withdrawal of their case from the first grand jury presentation due to witness unavailability constituted the functional equivalent of a dismissal pursuant to CPL 190.75 and our holding in People v Wilkins (68 NY2d 269 [1986]). We conclude that under the circumstances of each case it did not.

I

The assault charges lodged against defendants Makeda Davis and Payola McIntosh stem from a June 11, 2006 altercation at a nightclub allegedly instigated by Davis and joined in by McIntosh resulting in Lynn Walker sustaining severe injuries. McIntosh was arrested shortly after the incident; Davis was not apprehended until some time later.

On June 20, 2006, before police located and arrested Davis, the People began presenting evidence to a grand jury. Before calling the complainant, the People advised the jury that they were presenting evidence against McIntosh only and that “[t]his will be a continued case,” meaning that not all evidence would be submitted in one session.

Walker then testified that Davis, an acquaintance of hers, assaulted her. She further testified that McIntosh, also an acquaintance, joined in the assault. Ten days later, on June 30, 2006, the People advised the grand jury that they were withdrawing the case due to witness unavailability and the fact that it was this grand jury’s last day.

Four months later, the People presented evidence to another grand jury, this time naming both Davis and McIntosh as targets, and asking it to consider the same charges against both defendants. The People called three witnesses: Walker, the attending physician who treated Walker the night of the incident, and an eyewitness. The grand jury indicted both defendants on two counts of assault in the first degree and one count of assault in the second degree.

Supreme Court denied defendants’ motions to dismiss the indictment on the ground that the People should have obtained court authorization pursuant to CPL 190.75 (3) before re-presenting the case to a second grand jury. Following trial, Davis was convicted of all three assault counts. McIntosh was acquitted of the first-degree assault counts, but convicted of assault in the second degree. Davis and McIntosh brought separate appeals, claiming that the People should have obtained court authorization pursuant to CPL 190.75 (3) before re-presenting their cases to a second grand jury.

In People v Davis, the Appellate Division, with two Justices dissenting, reversed the judgment of conviction and dismissed the indictment, but granted the People leave to apply for an order of Supreme Court permitting them to resubmit the charges to another grand jury, holding that the People’s prevote withdrawal of the case from the first grand jury constituted “the functional equivalent of a dismissal” under this Court’s holding in People v Wilkins, requiring the People to obtain court permission before re-presentment (72 AD3d 53, 65 [1st Dept 2010]).

In People v McIntosh, the Appellate Division unanimously reversed, relying on its rationale in Davis, and dismissed the indictment, once again with leave for the People to seek leave to resubmit the charges to another grand jury (73 AD3d 653 [2010]). A Justice of the Appellate Division granted the People leave to appeal in Davis (2010 NY Slip Op 71696[U] [2010]), and a Judge of this Court granted the People leave to appeal in McIntosh (15 NY3d 807 [2010]), and we now reverse in both.

II

As relevant to these cases, CPL 190.60 (4) provides that once a grand jury hears and examines the evidence, it may among other options, dismiss the charge before it, as provided in section 190.75. A grand jury must dismiss a charge lodged against a designated person where the evidence before it is legally insufficient to demonstrate that such person committed the crime charged or any other offense, or where it is not satisfied that there is reasonable cause to believe such person committed such crime or any other offense (see CPL 190.75 [1] [a], [b]). In such a case, the dismissed charges may be re-presented to another grand jury but only after the People obtain court authorization (see CPL 190.75 [3]). This rule was enacted to “curb abuses that resulted from the common-law rule that allowed prosecutors to resubmit charges to successive Grand Juries ad infinitum until one voted an indictment” (People v Montanez, 90 NY2d 690, 693 [1997] [emphasis added], citing Wilkins, 68 NY2d 269, 273 [1986], supra).

Not every dismissal is the result of a grand jury’s explicit action pursuant to CPL 190.60 and 190.75, however. In Wilkins, we held that the People’s prevote withdrawal of charges from the grand jury, after the presentation was complete but before the grand jury was charged on the law, was the functional equivalent of a dismissal for purposes of CPL 190.75 (3), requiring the People to obtain court authorization before resubmission. There we held that the essential issue in deciding whether the People’s withdrawal from the grand jury should be treated as a de facto dismissal was “the extent to which the Grand Jury considered the evidence and the charge” (68 NY2d at 274). The People’s first presentation in Wilkins “was, as far as the prosecution was concerned, complete,” and we concluded that because all of the witnesses had testified and the only thing left for the People to do was charge the jury on the law, the People’s “unilateral withdrawal so late in the game must be deemed a dismissal, regardless of the good faith of the withdrawal” (id. at 274, 275).

We have made clear that Wilkins applies in only “limited circumstances” where the People’s withdrawal of a case from the grand jury “is fundamentally inconsistent with the objectives underlying CPL 190.75” (People v Gelman, 93 NY2d 314, 319 [1999]). Such objectives include curtailing prosecutorial excess in resubmitting charges repeatedly until a grand jury votes an indictment (see Wilkins, 68 NY2d at 275), and maintaining the independence of the grand jury (see Montanez, 90 NY2d at 694).

III.

In Davis, the order of the Appellate Division should be reversed, because the People had instructed the first grand jury that only McIntosh was the target of the proceedings. Although Walker testified before the first grand jury that Davis also participated in the attack, the introduction of such testimony was unavoidable given the fact that this was a joint attack. At that point, Davis had not been arrested. Moreover, the People advised the grand jury that it was to consider the evidence only against McIntosh. Since the People never sought an indictment from the first grand jury against Davis, Wilkins is irrelevant since there were no charges against Davis to be withdrawn (see People v Santmyer, 255 AD2d 871, 871 [4th Dept 1998]).

IV

With respect to McIntosh, it is undisputed that she was a target of both grand jury presentations. In this case, however, the Appellate Division erred in focusing on the legal sufficiency of the People’s case against McIntosh at the time they withdrew it rather than on “the extent to which the Grand Jury considered the evidence and the charge” (Wilkins, 68 NY2d at 274). Here, it cannot be said that the proceedings before the first grand jury had progressed to the point where it had fully considered the evidence and the charges against McIntosh. It is clear from the record that the People intended to present additional witnesses, stating before presenting any evidence that it would be a continuing case. Moreover, 10 days later, at the end of the grand jury’s term, there was at least one witness the People intended to present who was unavailable to testify. There is no evidence in this record that would raise the primary concern of this Court’s holding in Wilkins, namely that the People withdrew their case in order to present it to a more compliant grand jury. The People’s withdrawal of the charges under these circumstances does not constitute a dismissal under Wilkins, and the People were not therefore required to obtain court authorization before re-presenting the case to another grand jury.

Accordingly, the orders of the Appellate Division in both Davis and McIntosh should be reversed, and the cases remitted to the Appellate Division for consideration of the facts and issues raised but not determined on the appeals to that court.

Chief Judge Lippman

(concurring in Davis and dissenting in McIntosh). Although I join in the majority’s decision to reverse in Davis upon the very narrow ground that Davis was expressly not a target of the first presentation, I part company with the majority as to its disposition in McIntosh, which I believe rests upon a misreading of People v Wilkins (68 NY2d 269 [1986]).

It is not debatable that under Wilkins the crucial consideration in determining whether judicial permission for re-presentation is required pursuant to CPL 190.75 (3) is “the extent to which the Grand Jury considered the evidence and the charge” (68 NY2d at 274). The majority, after duly quoting this formulation, directly concludes that permission for re-presentation was not required with respect to the charges against McIntosh because “it cannot be said that the proceedings before the first grand jury had progressed to the point where it had fully considered the evidence and charges against [her]” (majority op at 639 [emphasis added]). Although it is clear that when there is full consideration of the charges, a prosecutor’s withdrawal of a matter will be deemed a dismissal triggering the application of CPL 190.75 (3) (see People v Credle, 17 NY3d 556 [2011] [decided herewith]), nowhere in Wilkins is full consideration of the evidence and charge made a necessary condition of judicial supervision of a prosecutor’s decision to resubmit charges to a second grand jury. To the contrary, the Wilkins Court observed that “the presentation need not be complete for consideration equivalent to a dismissal to occur” (68 NY2d at 274) and specifically noted that it had been “clearly held” in Matter of McGinley v Hynes (75 AD2d 897 [2d Dept 1980], revd on other grounds 51 NY2d 116 [1980], cert denied 450 US 918 [1981]) that “the Grand Jury had heard and considered enough to render the withdrawal of the case equivalent to a dismissal, even though the prosecutor conceded that he had not finished presenting his case and certainly could not at that point have formally instructed the Grand Jury on the law” (Wilkins, 68 NY2d at 274-275 [emphasis added]). While we did observe in Wilkins that the presentation there at issue had progressed further than had the presentation in McGinley, and that it was, in contrast to the presentation in McGinley, complete “as far as the prosecution was concerned” (id. at 274), we did not thereby hold that the effect of a withdrawal should turn upon whether the presenting prosecutor was of the view that he or she had completed presenting a matter. Our observation merely served to show that the presentation in Wilkins had exceeded by far the benchmark established by McGinley, where the prosecutor “concededly” had not finished his presentation.

There is no question that where a grand jury has not considered the evidence and charge against a particular target at all, the matter’s withdrawal may not be deemed a dismissal as against that individual (People v Gelman, 93 NY2d 314, 319 [1999]). What is less clear, and what neither Wilkins, at one end of the spectrum, nor Gelman at the opposite extreme are particularly helpful in ascertaining, is precisely when the prosecutor has crossed the rubicon — the point at which the prosecutor has placed before a grand jury sufficient evidence of a targeted individual’s commission of a crime that the prosecutor’s act of wresting the matter back from the grand jury should be considered a dismissal within the meaning of CPL 190.75 (3). The Appellate Division in Davis (see 72 AD3d 53, 60 [2010]) and at least one commentator (see Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.75, at 141), have understood the decisive inquiry to be whether there was at the time of the withdrawal sufficient evidence of the submitted offenses before the grand jury to support an indictment against a particular target. While that test is imperfect for denying the inference in situations where it might well be warranted — since the withdrawal of a count that would likely have been dismissed had it been voted would seem a natural candidate for a Wilkins dismissal — the sufficiency test has the virtue of clarity and would avoid the prospect of dismissal in situations where the prosecutor simply had not been able to present a prima facie case before the first grand jury. Certainly it is a test preferable to one in which the prosecutor’s subjective satisfaction with the fullness of his or her presentation is the measure. In any case, once a prosecutor has presented to a particular grand jury evidence sufficient to justify the indictment of a particular individual for a specified offense, it would seem entirely fair and consistent with the governing statutory design that there should arise a presumption that the matter will be disposed of by action of that first grand jury, which is to say that the matter will be concluded by that grand jury in one of the five ways authorized by CPL 190.60. In those hypothetically rare situations in which this does not occur and the first grand jury’s consideration of a matter is terminated not by its own statutorily authorized action but by the unilateral action of the prosecutor, the concerns underlying CPL 190.75 (3) are fully implicated and court supervision is necessary to assure that the action of the prosecutor has not impermissibly stripped the grand jury of its independent prerogative to judge whether a matter should be the subject of an indictment.

At the time of the withdrawal of the McIntosh matter, the prosecutor had presented considerable evidence implicating McIntosh in the charged offenses. While the presentation may not have been complete from the prosecutor’s perspective, that, as noted, cannot under Wilkins be dispositive of whether the matter’s withdrawal should be viewed as a dismissal triggering the applicability of CPL 190.75 (3). There is no question that the prosecutor had elected to commit the matter to the grand jury and that in pursuance of that election substantial evidence of McIntosh’s participation in the alleged wrongdoing was presented to and considered by the grand jury. Indeed, the Appellate Division found that the People had made “a full presentation of a legally sufficient case” against their named target (72 AD3d at 63). Having progressed so far, the prosecutor was not, under Wilkins, free to withdraw the case and re-present it to a second panel without leave of the court. It may be that the withdrawal was prompted only by the circumstance that the grand jury’s term was drawing to a close and there was still evidence that the prosecutor wished to present. The prosecutor, however, did not ask the grand jury to extend its term, as she could have (see CPL 190.15 [1]) and, in any event, the issue in judging whether a dismissal should be inferred is not the prosecutor’s good faith or lack of it — an issue that might be highly pertinent to a subsequent decision as to whether re-presentment should be allowed — but rather whether the presentation had progressed to the point that the grand jury should in the ordinary discharge of its responsibilities and function have disposed of the charges proposed as to the target in one of the statutorily authorized ways. Manifestly, that point had been reached and, that being the case, a judge, and not the prosecutor, should have decided in the first instance whether the circumstances of the withdrawal justified an exception to the policy against serial submissions of the same counts that CPL 190.75 (3) exists to enforce.

If an inference of dismissal under Wilkins could be avoided simply by a prosecutorial assertion of dissatisfaction with the fullness of the first presentation — an assertion undoubtedly easily made in very many cases given the fairly undemanding standard of evidentiary sufficiency applicable where indictments are concerned and the consequently tactically thin grand jury presentations often made — Wilkins would be effectively undone. Consistent with its limiting purpose (see People v Credle, supra), all that Wilkins purports to require as a condition of a “dismissal” within the meaning of CPL 190.75 (3) is that the grand jury “ ‘knew about and considered the charge’ ” (68 NY2d at 274, quoting People v Nelson, 298 NY 272, 276 [1948]). Plainly, those threshold criteria were met during the initial presentation against defendant McIntosh.

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

In People v Davis: Order reversed, etc.

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

In People v McIntosh: Order reversed, etc.


author: Smith, J. Chief Judge Lippman

text:
    [958 NE2d 865, 934 NYS2d 737]
    The People of the State of New York, Respondent, v Corey E. Becoats, Appellant. The People of the State of New York, Respondent, v Jason L. Wright, Appellant.
    Argued September 15, 2011;
    decided October 20, 2011

      POINTS OF COUNSEL

      Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson and Brian Shiffrin of counsel), and Kristin Splain, Conflict Defender, for appellant in the first above-entitled action.
    I. The trial court’s refusal to grant an adjournment so that Mr. Corey Becoats could secure the presence of a critical witness violated Mr. Becoats’s constitutional rights to a fair trial, to present a defense, and to confrontation and constituted an abuse of discretion. (Matter of Anthony M., 63 NY2d 270; People v Singleton, 41 NY2d 402; People v Spears, 64 NY2d 698; People v Foy, 32 NY2d 473; People v Matz, 23 NY2d 196; People v Ballott, 20 NY2d 600; People v Snyder, 297 NY 81; Chambers v Mississippi, 410 US 284; Singleton v Lefkowitz, 583 F2d 618, cert denied sub nom. Abrams v Singleton, 440 US 929; Washington v Texas, 388 US 14.) II. The People failed to prove that Mr. Corey Becoats committed the crime of robbery. (People v Williams, 84 NY2d 925; People v Hines, 97 NY2d 56; People v Lynch, 95 NY2d 243; People v Ficarrota, 91 NY2d 244; People v Bleakley, 69 NY2d 490; People v Cabey, 85 NY2d 417; People v Gray, 86 NY2d 10; People v Jennings, 69 NY2d 103; Van Vechten v American Eagle Fire Ins. Co., 239 NY 303; People v Wright, 63 AD3d 1700.) III. It was reversible error to submit to the jury the robbery count charging Mr. Corey Becoats with robbing a gun and/or sneakers from the victim. (People v Charles, 61 NY2d 321; People v Wells, 7 NY3d 51; People v Keindl, 68 NY2d 410; People v Bauman, 12 NY3d 152; People v First Meridian Planning Corp., 86 NY2d 608; Hamling v United States, 418 US 87; People v Reed, 265 AD2d 56; People v Wright, 63 AD3d 1700; Griffin v United States, 502 US 46; Yates v United States, 354 US 298.) IV. The trial court’s evidentiary rulings which erroneously permitted improper and prejudicial testimony and impermissibly prohibited the admission of relevant testimony singularly and cumulatively deprived Mr. Corey Becoats of his due process right to a fair trial as guaranteed by the United States and New York Constitutions. (People v Johnson, 93 NY2d 254; People v Geraci, 85 NY2d 359; People v Rivera, 160 AD2d 267; People v Leon, 121 AD2d 1; People v Pitts, 218 AD2d 715; People v Kornegay, 164 AD2d 868; Matter of Holtzman v Hellenbrand, 92 AD2d 405; People v Johns, 297 AD2d 645; People v Melendez, 55 NY2d 445; People v James, 177 AD2d 595.)

      Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), for respondent in the first above-entitled action.
    I. The trial court did not abuse its discretion in denying defendant’s request for an adjournment to secure the attendance of a witness. (People v Foy, 32 NY2d 473; Matter of Anthony M., 63 NY2d 270; People v Singleton, 41 NY2d 402; Gilmore v United States, 129 F2d 199; Stone v Morris, 546 F2d 730.) II. Defendant’s conviction of robbery in the first degree is supported by legally sufficient evidence. (People v Hawkins, 11 NY3d 484; People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56; People v James, 75 NY2d 874; People v Cochran, 302 AD2d 276; People v Danielson, 9 NY3d 342; People v Sala, 95 NY2d 254; People v Dekle, 56 NY2d 835; People v Rooney, 57 NY2d 822; People v Charles, 61 NY2d 321.) III. The question of whether the charge of robbery in the first degree is duplicitous cannot be reviewed by this Court and is otherwise without merit. (People v Hawkins, 11 NY3d 484; People v Patterson, 39 NY2d 288; People v Robinson, 36 NY2d 224; People v Kelly, 5 NY3d 116; People v Gray, 86 NY2d 10; People v Kadarko, 14 NY3d 426; People v O'Rama, 78 NY2d 270; People v Kisoon, 8 NY3d 129; People v Starling, 85 NY2d 509; People v Klipfel, 160 NY 371.) IV. Defendant received effective assistance of counsel under both the New York and Federal Constitutions. (People v Schulz, 4 NY3d 521; Strickland v Washington, 466 US 668; People v Flores, 84 NY2d 184; People v Kroemer, 204 AD2d 1017; People v Baldi, 54 NY2d 137; People v Satterfield, 66 NY2d 796; Rosario v Ercole, 601 F3d 118; People v Turner, 5 NY3d 476; People v Rivera, 71 NY2d 705; People v Grayson, 266 AD2d 740.) V. Defendant received a fair trial and none of the claimed errors raised before the Appellate Division require reversal. (People v Wilson, 195 AD2d 493; People v Rivera, 160 AD2d 267; People v Geraci, 85 NY2d 359; People v Corby, 6 NY3d 231; People v De Vito, 56 NY2d 846.) VI. Defendant is not entitled to relief based on his attempt to “join” in the claims raised in the brief of co-defendant Jason Wright. (People v Teeter, 47 NY2d 1002; People v Ford, 66 NY2d 428.)

      Jonathan I. Edelstein, New York City, for appellant in the second above-entitled action.
    I. The evidence against defendant was insufficient to support his conviction of robbery in the first degree. (People v Schulz, 4 NY3d 521; Jackson v Virginia, 443 US 307; People v Ficarrota, 91 NY2d 244; People v Garland, 125 AD2d 328; People v Parker, 96 AD2d 1063; People v Montgomery, 39 AD2d 889; People v Jennings, 69 NY2d 103; People v Ford, 66 NY2d 428; People v Cleague, 22 NY2d 363; People v Moore, 291 AD2d 336.) II. The robbery charge was duplicitous. (People v Patterson, 39 NY2d 288; People v Van Dyne, 12 AD3d 120; People v Ray, 71 NY2d 849; People v Agramonte, 87 NY2d 765; People v Brown, 7 NY3d 880; People v Martinez, 81 NY2d 810; People v Cruz, 96 NY2d 857; People v Keindl, 68 NY2d 410; People v Bauman, 12 NY3d 152; People v Barnes, 64 AD3d 890.) III. A new trial is required because it is impossible to tell whether the robbery conviction was predicated upon a legal or illegal theory. (Yates v United States, 354 US 298; United States v Joseph, 542 F3d 13; People v Martinez, 83 NY2d 26; Griffin v United States, 502 US 46.) IV. Defendant received ineffective assistance of counsel at trial. (Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; Kyles v Whitley, 514 US 419; People v Lewis, 2 NY3d 224; Lockhart v Fretwell, 506 US 364; People v Caban, 5 NY3d 143; People v Turner, 5 NY3d 476; Murray v Carrier, 477 US 478; Henry v Poole, 409 F3d 48; Rosario v Ercole, 601 F3d 118.) V. The remaining issues raised before the Appellate Division require reversal. (Mutual Life Ins. Co. v Hillmon, 145 US 285; People v James, 93 NY2d 620; People v D’Arton, 289 AD2d 711; People v Slaughter, 189 AD2d 157; Chambers v Mississippi, 410 US 284; People v Rivera, 160 AD2d 267; People v Leon, 121 AD2d 1; People v Randolph, 18 AD3d 1013; People v Schwartzman, 24 NY2d 241; People v Arroyave, 49 NY2d 264.)

      Michael C. Green, District Attorney, Rochester CKelly Christine Wolford of counsel), for respondent in the second above-entitled action.
    I. Defendant’s conviction of robbery in the first degree is supported by legally sufficient evidence. (People v Hawkins, 11 NY3d 484; People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56; People v James, 75 NY2d 874; People v Cochran, 302 AD2d 276; People v Danielson, 9 NY3d 342; People v Sala, 95 NY2d 254; People v Dekle, 56 NY2d 835; People v Rooney, 57 NY2d 822; People v Charles, 61 NY2d 321.) II. The question of whether the charge of robbery in the first degree is duplicitous cannot be reviewed by this Court and is otherwise without merit. (People v Hawkins, 11 NY3d 484; People v Patterson, 39 NY2d 288; People

      v Robinson, 36 NY2d 224; People v Kelly, 5 NY3d 116; People v Gray, 86 NY2d 10; People v Kadarko, 14 NY3d 426; People v O’Rama, 78 NY2d 270; People v Kisoon, 8 NY3d 129; People v Starling, 85 NY2d 509; People v Sanchez, 84 NY2d 440.) III. Defendant is not entitled to a new trial based on his claim that the jury could have convicted him on an “illegal theory.” (People v Baumann & Sons Buses, Inc., 6 NY3d 404; People v Hawkins, 11 NY3d 484; People v Dekle, 56 NY2d 835; People v Rooney, 57 NY2d 822; People v Spann, 56 NY2d 469; People v Charles, 61 NY2d 321; People v Cash J.Y., 60 AD3d 1487.) IV. Defendant received effective assistance of counsel under both the New York and Federal Constitutions. (People v Schulz, 4 NY3d 521; Strickland v Washington, 466 US 668; People v Flores, 84 NY2d 184; People v Kroemer, 204 AD2d 1017; People v Baldi, 54 NY2d 137; People v Satterfield, 66 NY2d 796; Rosario v Ercole, 601 F3d 118; People v Turner, 5 NY3d 476; People v Rivera, 71 NY2d 705; People v Garcia, 75 NY2d 973.) V. Defendant received a fair trial and none of the claimed errors raised before the Appellate Division require reversal. (People v Corby, 6 NY3d 231; People v Wilson, 195 AD2d 493; People v Rivera, 160 AD2d 267; Matter of Anthony M., 63 NY2d 270; People v Brink, 57 AD3d 1484; People v Doud, 280 AD2d 955, 96 NY2d 799; People v Canada, 28 AD3d 1230; People v Dawson, 249 AD2d 977, 93 NY2d 872; People v Gissendanner, 48 NY2d 543; People v Bassett, 55 AD3d 1434.)
   OPINION OF THE COURT

Smith, J.

Defendants, Corey Becoats and Jason Wright, appeal their convictions for manslaughter and robbery. We reject most of their arguments, but conclude that Wright is entitled to a new trial because of an error in excluding evidence he tried to present in his defense.

I

The People sought to prove that defendants, acting with a third man, Sherrod Carter (who had not been apprehended at the time of the trial), beat Hayden Spears to death, and forcibly stole property from him. Two witnesses described an incident in which the three attackers first argued with Spears in the street, and then began to hit him with their fists, a stick or hammer, and a gun that Wright removed from the victim’s pants. Spears fled down the street, bleeding and staggering, but the three caught up with him and resumed the beating, Becoats now using a broken bottle. The fracas moved into a nearby field, where the witnesses lost sight of it. Later, the attackers came back out of the field; Wright was carrying a pair of sneakers. Spears was found near death in the field. He died of blunt force trauma.

The two witnesses who claimed to have seen the attack were Lorraine Small and Nicholas Carter, Sherrod Carter’s brother. Both had significant criminal records. There was forensic evidence consistent with the witnesses’ accounts of the event, but there was no evidence of the attackers’ identity except the eyewitness testimony.

A jury convicted both defendants of second degree (depraved indifference) murder and first degree robbery. The Appellate Division modified by reducing the murder convictions to manslaughter in the second degree, and otherwise affirmed (People v Wright, 63 AD3d 1700 [4th Dept 2009]; People v Becoats, 71 AD3d 1578 [4th Dept 2010]). A Judge of this Court granted defendants leave to appeal (15 NY3d 811 [2010]; 15 NY3d 802 [2010]). We now affirm as to Becoats, but reverse and order a new trial as to Wright.

II

The indictment included a single count of robbery in the first degree, asserting that defendants “forcibly stole property, to wit, a gun and/or a pair of sneakers from Hayden Spears” and caused serious physical injury to Spears. Becoats and Wright claim that this count was duplicitous — i.e., that the robbery of the gun and the robbery of the sneakers were separate crimes that should have been charged in separate counts. They did not make this argument in the trial court, however, and we hold that we may not consider it.

The general rule, of course, is that this Court does not consider claims of error not preserved by appropriate objection in the court of first instance (CPL 470.05, 470.35; People v Patterson, 39 NY2d 288, 294-295 [1976] [citations omitted]). Defendants seek to bring this case within the narrow exception for so-called “mode of proceedings” errors, but the exception does not apply here.

We said in Patterson: “A defendant in a criminal case cannot waive, or even consent to, error that would affect the organization of the court or the mode of proceedings prescribed by law” (39 NY2d at 295). We added:

“the purpose of this narrow, historical exception is to ensure that criminal trials are conducted in accordance with the mode of procedure mandated by Constitution and statute. Where the procedure adopted by the court below is at a basic variance with the mandate of law, the entire trial is irreparably tainted” (id. at 295-296).

Not every procedural misstep in a criminal case is a mode of proceedings error. That term is reserved for the most fundamental flaws. Examples are the shifting of the burden of proof from prosecution to defense (id. at 296), and the delegation of the trial judge’s function to his or her law secretary (People v Ahmed, 66 NY2d 307, 312 [1985]). Mistakenly charging more than one crime in one count of an indictment is not a fundamental error in this sense. A defendant who wants the charges separated must seek that relief at trial.

To allow an unpreserved claim of duplicitousness to be raised on appeal would open the door to abuse. Defendants accused of multiple offenses may not much care how many counts they face, or may prefer to face one count (and thus one conviction) rather than several. Under the rule defendants here seek, it would be possible for them to make that choice at trial by letting a duplicitous indictment stand without objection, and make the opposite choice on appeal; they might thus obtain a new trial on the basis of an error they consciously decided not to challenge because they thought it insignificant, or welcomed it. To expand the definition of “mode of proceedings” error too freely would create many such anomalous results.

We therefore do not consider defendants’ argument that the indictment here was duplicitous. We express no opinion about the argument’s merit.

III

Defendants complain of the trial court’s refusal to grant an adjournment, on the eve of trial, to allow the defense to obtain the testimony of a witness in federal custody. We hold that the court did not abuse its discretion.

The trial was scheduled to begin on September 12, 2005. On August 23, 20 days before trial, Becoats’s counsel received a letter from the prosecutor dated August 19. The letter said that the prosecution had recently learned of, and interviewed, a witness named Michael Bishop, a federal prisoner. Bishop, according to the letter, had told prosecutors on August 17 “that he was present for a portion of the beating of Hayden Spears. He stated that he observed Sherrod Carter, Nick Carter and Jason Wright take place [sic] in the beating. He also stated that he did not see Corey Becoats when he was present at the scene.”

Becoats’s counsel was on trial in another case when the prosecutor’s letter arrived. He responded on August 29 by asking where Bishop was located, and who his lawyer was. The prosecutor replied on August 31, identifying Bishop’s lawyer and the federal prison in Ohio where Bishop was being held.

Becoats’s lawyer, according to his submissions below, “immediately contacted” Bishop’s lawyer and then “followed up” by making contact with the United States Marshal’s office. He was advised, he told the court, “that no guarantee could be made that the prisoner would be produced- in a state court proceeding” and that in any event “the U.S. Marshal’s office had to be given at least 30 days notice” if there was to be a “remote possibility” that Bishop would be made available.

The exact date of the conversation between Becoats’s lawyer and the Marshal’s office is not in the record. The lawyer apparently did nothing as a result of the conversation until September 9 — the last business day before the trial — and even then he did not seek an order or begin any other proceeding to obtain Bishop’s testimony, either at trial or by deposition. Instead, he filed papers with the trial court describing the sequence of events, asserting that the prosecution had “dragged its feet in providing the information to the defense,” and asking for “an adjournment in the proceeding so that [Bishop] can be secured at trial.” The adjournment was not granted.

We cannot say that the trial court abused its discretion in denying the adjournment. It is true that the witness’s testimony, as described by the prosecutor, seemed very significant, and it is also true that the People could have acted more speedily than they did. It is not clear why, having interviewed Bishop on August 17, the People waited two days and then sent a letter to defense counsel by regular mail. If defense counsel had acted with reasonable diligence after receiving that letter, and had nevertheless been unable to obtain Bishop’s testimony in time for trial, it might well have been an abuse of discretion for the court to deny an adjournment (see People v Foy, 32 NY2d 473 [1973]).

The trial court was justified in finding, however, that defense counsel did not act with reasonable diligence. Even assuming that the delay from August 23 to August 29 is excused by counsel’s involvement in another trial, there were almost two weeks between August 31 (when counsel got a response to his August 29 inquiry) and the trial date in which counsel could have sought, and perhaps obtained, an order requiring Bishop’s testimony. Counsel chose not to do so, but instead to complain about the People’s conduct and ask for an adjournment. It is unclear from the record whether counsel really wanted Bishop’s testimony, or simply wanted delay, or was hoping to create an issue for appeal. It was for the trial court to assess whether, under all the circumstances, an adjournment in the hope of obtaining Bishop’s testimony was justified, and we see no basis in the record to second-guess the trial court’s conclusion.

The dissent acknowledges doubt about whether counsel “did all that he possibly could to obtain Bishop’s appearance” (dissenting op at 658-659). Nevertheless, our dissenting colleagues would order a new trial for Becoats, apparently because the possibility that Becoats was deprived of critical, exculpatory testimony seems unacceptable. But that is no more than a possibility on this record. Bishop’s account of the facts may have turned out to be much less helpful to Becoats than it seems from the prosecutor’s letter; counsel may have had sound strategic reasons for doing no more than he did. On the other hand, if Becoats really has been prejudiced by his counsel’s inaction, our holding today does not prevent him from demonstrating that on a motion brought under CPL article 440.

IV

As we mentioned above, the indictment charged defendants with forcibly stealing from Spears a gun “and/or” a pair of sneakers. Defendants argue that the evidence is insufficient as to both items to support a conviction for robbery. They also argue that if the evidence was sufficient as to one item but not the other, a new trial is necessary. We reject both of these arguments.

As to the gun, the Appellate Division agreed with defendants that the evidence was insufficient. The record shows only that defendants took Spears’s gun to beat him with and then abandoned it at the scene. This, the Appellate Division held, was insufficient to prove that defendants intended permanently to deprive Spears of possession and use of the gun (see People v Jennings, 69 NY2d 103, 118-121 [1986]). We assume that this aspect of the Appellate Division’s decision is correct.

The Appellate Division nevertheless affirmed defendants’ robbery convictions, concluding that the evidence was sufficient to support a finding that they forcibly stole the sneakers. Defendants argue otherwise, saying that there is no proof the sneakers were taken from the victim, Spears. Defendants point out that no witness actually saw the sneakers removed from Spears’s feet; the end of the encounter between Spears and his attackers took place in a field out of the witnesses’ sight. No witness mentioned what kind of footwear Spears had on that day, and no one specifically said that he lacked shoes when he was found (though an investigator who observed his body at the hospital said there was “a lot of dirt and sand on his feet”). The sneakers that Wright brought out of the field, defendants say, could have come from anywhere.

We think the evidence was sufficient to support the verdict as to the sneakers. When three men beat a fourth man unconscious in a field, and emerge from the field as a group with one of them carrying a pair of sneakers, the inference that the sneakers came from the beating victim is a strong one. It is theoretically possible, of course, that Spears’s attackers chanced upon an abandoned pair of sneakers in the field, but a jury could find, beyond a reasonable doubt, that that is not what happened. Defendants now argue, in the alternative, that the evidence fails to show that they used force “for the purpose of’ taking Spears’s sneakers (see Penal Law § 160.00), but that argument was not made below and is not preserved for our review (see People v Hawkins, 11 NY3d 484, 492 [2008]).

We also reject defendants’ argument that a new trial is required because the robbery verdict might have been based on the taking of the gun. As the United States Supreme Court held in Griffin v United States (502 US 46, 56 [1991]), a general verdict need not be set aside merely “because one of the possible bases of conviction was . . . unsupported by sufficient evidence.” It is different when a flawed legal theory is given to the jury as an alternative basis for decision; if jurors are given the option of convicting on legally inadequate grounds, “there is no reason to think that their own intelligence and expertise will save them from that error” (id. at 59). But where jurors are given a choice between a factually supported and factually unsupported theory, it is assumed that they have chosen the one with factual support, “since jurors are well equipped to analyze the evidence” (id.). We made clear in People v Martinez (83 NY2d 26, 36 [1993]) that we accept the distinction between legal and factual inadequacy made in the Griffin case.

V

We come finally to the issue that we conclude requires reversal of Wright’s conviction.

As we have mentioned, the only evidence linking defendants to the attack on Spears came from two witnesses who said they saw the attack, Lorraine Small and Nicholas Carter. In a deposition given to police about a week after the event, Small told them that she had overheard a conversation in which an attack on Spears was being planned. According to Small, Nicholas Carter took part in the conversation, and Wright was not present. The jury never learned of this conversation; Wright tried to put it in evidence, but the trial court would not let him do so. In this, we conclude, the trial court erred.

According to Small’s deposition, she was on her front porch on the day before the crime when she heard a group talking in front of a neighboring house. She said that the group included five people, whom she named: Sherrod Carter, Nicholas Carter and Becoats were among them, but Wright was not. They were talking, according to Small, about “what to do with” Spears. Some said they should beat him. Sherrod Carter said “no I ain’t gonna beat him, I’m gonna kill him,” adding “I’m gonna murder that motherfucker.” At that point, according to Small, “Nick told him to stop talking so loud.”

Wright sought at trial to question Small about this conversation, which was helpful to him in two ways — showing both his absence from the planning session and the participation in it by one of the People’s key witnesses. The trial court ruled that the statements Small overheard should be excluded on hearsay grounds.

This ruling was mistaken. Wright argues, perhaps correctly, that Sherrod Carter’s statement that he was going to kill Spears was within the “statement of present intention” exception to the hearsay rule (Mutual Life Ins. Co. v Hillmon, 145 US 285, 294-296 [1892]; People v James, 93 NY2d 620, 627-636 [1999]). But Wright did not even need to rely on a hearsay exception, because he was not offering Sherrod’s statement, or any other out-of-court declaration, for its truth; Wright had no interest in proving that Sherrod actually intended to kill Spears. Wright wanted only to prove that he was not part of this meeting, and that Nicholas Carter was. His proffer raised no hearsay problem.

The People do not defend the exclusion of the statement on hearsay grounds, but argue that the trial court had discretion to exclude it because its relevance to Wright’s defense was outweighed by its possible prejudice to Becoats. We disagree.

The evidence could have been very valuable to Wright. In a case wholly dependent on the testimony of two eyewitnesses— both of whom had criminal records that might have made the jury doubt their word — proof that one of the two had actually participated in planning the crime might have been decisive. It could have supplied the basis for an argument that Nicholas Carter was one of the criminals, and was falsely accusing Wright to conceal his own involvement. Admittedly, Small’s accusation of Wright would remain — but the jury might not have convicted Wright on her word alone.

As for the prejudice to Becoats, there may have been none. As we have said, the testimony may well have been admissible against Becoats under Hillmon and James. But even if it was not, that does not provide a good enough reason for depriving Becoats’s codefendant of important exculpatory evidence. Other means might have been found — perhaps by carefully limiting the scope of the questions and answers — to protect Wright without being unfair to Becoats.

Defendants’ remaining arguments lack merit.

Accordingly, in People v Becoats, the order of the Appellate Division should be affirmed. In People v Wright, the order of the Appellate Division should be reversed, and the case remitted to Supreme Court for a new trial.

Chief Judge Lippman

(dissenting in Becoats): While I am in agreement with the majority’s resolution of the other issues in the case, I do not agree that the denial of defendant Becoats’ motion for an adjournment was under the circumstances within the permissible range of the trial court’s discretion. Indeed, it appears at the very least highly incongruous to conclude as the majority has, on the one hand, that defendant Wright’s convictions must be reversed upon the ground that erroneously excluded, potentially “decisive” evidence, showed that one of the two prosecution witnesses, Nicholas Carter, “had actually participated in planning the crime,” (majority op at 656) and, on the other, that the trial court’s decision denying defendant Becoats one adjournment to present a witness who would testify that he had actually seen Nicholas Carter, and not Becoats, take part in the crimes, was not also sufficient cause for a new trial.

Both prosecution witnesses had extensive criminal records. Nicholas Carter, in fact, testified in exchange for a veiy generous plea offer allowing him to satisfy pending class A-II and B drug felony charges with a probationary sentence. At trial, he recounted that on the evening in question he had been running a bath when his niece informed him that there was a fight going on across the street. He claimed to have watched the fight as it progressed up Joseph Place, and to have seen defendants pull the victim, Spears, into an abutting field, where they were joined by Nicholas Carter’s brother, Sherrod Carter. At this point, Nicholas went inside to take his bath. He testified that, when his bath was over, he observed Sherrod, Becoats and Wright coming out of the field. Wright, he said, was holding a pair of boots.

On August 23, 2005, 20 days before the trial was scheduled to begin, defendant Becoats’ attorney received a letter from the Monroe County Assistant District Attorney assigned to the case. The Assistant opened his communication by indicating that he was writing, “pursuant to [the prosecutor’s] ongoing Brady obligation.” The letter then advised that the District Attorney’s office had learned on August 15, 2005 that a federal inmate named Michael Bishop had information about the Spears case. An interview had been conducted by .the District Attorney on August 17, 2005 during which Bishop stated that he had been present during part of the Spears beating and that although he observed Sherrod Carter, Nick Carter and Jason Wright beating Spears, he did not see Corey Becoats at the scene.

On August 29, 2005, Becoats’ attorney made a letter inquiry of the Assistant District Attorney as to the place of Bishop’s incarceration and the identity of his lawyer. The sought information was provided two days later. After speaking with Bishop’s attorney, Becoats’ counsel asked the United States Marshal’s office about the feasibility of transporting Bishop from the federal correctional facility in Youngstown, Ohio where he was incarcerated to Becoats’ upcoming Monroe County trial. The Marshal’s office was noncommital, indicating that a state court “body order” would be processed in due course and that minimally 30 days notice was required for production of a federal prisoner at a state proceeding.

On September 9, 2005, Becoats’ attorney requested an adjournment of the trial so that Bishop could be produced to testify. On September 12, 2005, before any ruling upon defendant’s adjournment request had been made, the People disclosed for the first time that they intended to call Nicholas Carter as a witness. Inasmuch, however, as Nicholas Carter had been implicated in the Spears beating by Bishop, and Bishop’s anticipated testimony would not merely be exculpatory as to Be-coats but would demonstrate that one of the two prosecution witnesses had a motive falsely to implicate others, counsel for Becoats, now joined by counsel for Wright, renewed his request for an adjournment to permit Bishop’s production in court. The trial court nonetheless denied the adjournment, because it was of the view that counsel could have sought a judicial subpoena earlier.

Although our inquiry in judging the propriety of the adjournment denial is limited to determining whether the denial constituted an abuse of discretion — a very tolerant standard that purposefully insulates most judicial decisions respecting the management of a trial from retrospective appellate scrutiny— the range of permissible judicial discretion is generally understood to contract significantly in situations where the adjournment is necessary to the exercise of a fundamental right (see People v Foy, 32 NY2d 473, 476-477 [1973]; People v Spears, 64 NY2d 698, 699-700 [1984]). Fully implicated by defendant Be-coats’ adjournment request was his fundamental right to present witnesses in his defense (see Chambers v Mississippi, 410 US 284, 302 [1973]) and his closely allied right to compulsory process to secure the attendance of such witnesses. Also implicated was his right to confront a key witness against him— Nicholas Carter. I do not believe that, given the basic protections that were at stake, all of which were essential to the fairness and probity of the impending trial, the court, under the circumstances, had discretion to deny Becoats’ adjournment request.

No one disputes that if Bishop had testified in accordance with the account of the crime he gave the Assistant District Attorney on August 17, 2005 he would have provided evidence to the effect that, although he had been present during part of the victim’s beating he did not see Becoats and, moreover, that one of the two prosecution witnesses to the relevant events was himself a participant in the beating he claimed to have witnessed from afar. The obvious materiality of this evidence to Becoats’ defense is impossible to overstate. Becoats’ counsel did not learn about Bishop’s version of the incident until relatively shortly before trial and did not know that Nicholas Carter would testify for the prosecution until, literally, the day of the trial’s scheduled commencement. It is possible to quibble about whether he did all that he possibly could to obtain Bishop’s appearance for the scheduled trial, but it is clear that a day here or there would not have made a difference and that an adjournment would, in any event, have been necessary to secure Bishop’s production from the federal facility in Ohio where he was incarcerated. Undoubtedly, rescheduling the trial would have been inconvenient for the court, but it would not have been more than that — there was no contention a postponement would have precluded the presentation of any testimony or other evidence. Nor was there any reason to suppose that Bishop’s attendance could not have been secured within a reasonable time. He was, after all, an identified witness in a federal prison, and there exist established procedures to obtain the attendance of federally incarcerated witnesses in state court proceedings (see CPL 650.30). While those procedures rely for effect upon the voluntary cooperation of federal authorities, there was no reason to suppose that such cooperation would not have been forthcoming.

This was not a situation in which the defendant sought “endlessly [to] pursue an elusive witness” (Foy, 32 NY2d at 478), but one in which the defendant requested a single adjournment to secure the attendance at trial of an identified exculpatory witness whose existence and location had been ascertained by the prosecution in the performance of its Brady obligations. “[M]ere inconvenience is not sufficient ground for denying an adjournment when to do so would abridge a basic right” (id. at 477; see also Singleton v Lefkowitz, 583 F2d 618, 623 [2d Cir 1978], cert denied sub nom. Abrams v Singleton, 440 US 929 [1979]). Inasmuch as there was no more compelling ground identified for the denial at issue and that denial undoubtedly abridged basic rights, leaving substantial doubt as to the reliability of the verdict, defendant Becoats should, like his codefendant, be afforded a new trial.

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

In People v Becoats: Order affirmed.

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

In People v Wright: Order reversed, etc.

       This was a federal habeas proceeding in which Singleton prevailed upon the claim, previously rejected by this Court (People v Singleton, 41 NY2d 402 [1977]), that the trial court had abused its discretion in denying him a continuance to secure the attendance of a material witness in his defense.