text:
    [870 NE2d 146, 838 NYS2d 828]
    The People of the State of New York, Respondent, v Larry Bratton, Appellant.
    Argued May 3, 2007;
    decided June 12, 2007

      POINTS OF COUNSEL

      Schlather, Geldenhuys, Stumbar & Salk, Ithaca (Diane V. Bruns of counsel), for appellant.
    A warrantless arrest of a parolee by a parole officer is not an authorized arrest and, accordingly, cannot serve as the predicate to a conviction for the crime of resisting arrest. (People v Huntley, 43 NY2d 175; Best v State of New York, 264 AD2d 404; People v Dyla, 142 AD2d 423; People ex rel. Maggio v Casscles, 28 NY2d 415; Matter of Mullins v State Bd. of Parole, 43 AD2d 382; People ex rel. Walker v Hammock, 78 AD2d 369; Morrissey v Brewer, 408 US 471; United States v Polito, 583 F2d 48; United States v Garcia-Hernandez, 237 F3d 105; People v Gordon, 176 Misc 2d 46.)

      Gwen Wilkinson, District Attorney, Ithaca (Sara Kim Keller of counsel), for respondent.
    I. Defendant’s arrest was lawful, because defendant’s conduct gave rise to probable cause to arrest for a defined “offense” in the Penal Law, and not just for a technical parole violation. (People v Duprey, 98 AD2d 110; People v King, 102 AD2d 710; People v Gustafson, 110 AD2d 1055; People v Fields, 146 AD2d 505; People v Washington, 196 AD2d 346; People v Laltoo, 22 AD3d 230; People v McRay, 51 NY2d 594; People v Thomas, 239 AD2d 246.) II. A warrantless arrest for a parole violation based on probable cause should not be held invalid summarily; Executive Law § 259-i (3) and 9 NYCRR part 8004 apply to parole revocation proceedings as a whole. (Morrissey v Brewer, 408 US 471; People v Dyla, 142 AD2d 423.) III. A parole officer should be granted at least the same authority to make warrantless arrests as probation officers. (Morrissey v Brewer, 408 US 471; People v Huntley, 43 NY2d 175.) IV. It is against public policy to prohibit a parole officer from retaking a parolee due to the lack of a parole warrant when the parolee violates a parole condition in the supervising officer’s presence and then threatens to leave the premises against the parole officer’s directives. (Morrissey v Brewer, 408 US 471; People v Huntley, 43 NY2d 175; People v Santos, 82 Misc 2d 184.)
   OPINION OF THE COURT

Read, J.

Defendant Larry Bratton was convicted of criminal sale of a controlled substance in the fifth degree on October 19, 2001, and subsequently sentenced to incarceration. On January 14, 2005, he was released from Watertown Correctional Facility to parole supervision. As conditions of his parole release, defendant consented in writing to permit his assigned parole officer, Edward Wijkowski, to visit him at his residence, to submit to substance abuse testing, and to comply fully with the parole officer’s instructions.

On February 8, 2005 at about 8:45 p.m., Wijkowski and parole officer Jeffrey Jones made an unannounced “positive home visit” to see defendant in his apartment in person, as was required within 30 days of defendant’s release, and to take a urine sample because defendant, who had violated parole previously, was considered “a high risk case.” Upon arrival at the apartment, Wijkowski knocked on the door, identified himself and asked to be admitted.

Defendant, who was partially clothed at the time, opened the door to admit Wijkowski and Jones. After asking defendant where the bathroom was, Wijkowski realized that neither he nor Jones had brought the test kit in from the car. Wijkowski announced that he would return to the car to get the kit, and instructed Jones to remain with defendant.

Defendant was suspicious of Wijkowski and wary of Jones, whom he had not met before. As Wijkowski started to leave the apartment, defendant balked at the drug test, complaining that his curfew was not until 10:00 p.m., and declaring that the officers would have to come back then. He began getting dressed as if to leave. When Jones instructed defendant to sit down on his bed, he questioned why Jones was in his apartment at all, and asked who he was. Jones identified himself as a parole officer, and directed defendant to comply with his order, citing the condition of defendant’s parole release requiring him to comply fully with a parole officer’s instructions. Instead, defendant, by now fully dressed, got up and pushed past Jones using his shoulder.

Sensing an escalating conflict, Wijkowski had already called the local police department from the hallway just outside defendant’s apartment, using his cell phone. As he reentered the apartment, Wijkowski observed defendant push Jones, and told him that he was under arrest for a parole violation. Wijkowski testified that although he did not call out the particular parole violation, he arrested defendant for “his failure to comply with our directives to him to submit to a urine test.” Defendant struggled with the officers. They ultimately pulled him down onto the mattress on his bed and held him there until they managed to handcuff him. He was subsequently charged with one count of resisting arrest (Penal Law § 205.30), and one count of obstructing governmental administration in the second degree (Penal Law § 195.05).

Defendant proceeded to a nonjury trial in City Court. At the conclusion of the People’s case, he moved to dismiss the charge of resisting arrest on the ground that the arrest was unauthorized because made without a warrant in violation of Executive Law § 259-i (3) (a) (i) and 9 NYCRR 8004.2. These provisions state generally that a parole officer who has reasonable cause to believe that a parolee has violated a condition of parole must report that fact to a member of the New York State Parole Board or an officer of the New York State Division of Parole designated by the Board, who may then issue a warrant for the retaking and temporary detention of the parolee. The court reserved decision on the motion, which defendant renewed on the same ground at the conclusion of all the testimony.

After posttrial memoranda were submitted on the issue, City Court handed down a written decision on August 26, 2005, finding defendant not guilty of the crime of obstructing governmental administration, but guilty of resisting arrest, and sentencing him to time served, concurrent with the parole violation time. While acknowledging 9 NYCRR 8004.2, City Court concluded that it was “not necessary for a parole officer to obtain a parole violation warrant to arrest a parolee whose violation occurs in the presence of the parole officer during an interview.” Because Wijkowski was therefore authorized to arrest defendant without first obtaining a warrant and defendant resisted the arrest with physical force, the court found that the evidence supported the charge of resisting arrest.

Defendant appealed to County Court, which affirmed his judgment of conviction on August 21, 2006. In its decision, County Court noted that defendant’s “primary point on appeal [was] that his arrest by a parole officer, without a warrant issued pursuant to Executive Law 259-i (3) (a) (i) and Title 9 of the New York Code of Rules and Regulations, was illegal,” and therefore City Court should have dismissed the charge of resisting arrest. The court decided, however, that while a parole officer may seek a warrant for a parole violation, this procedure was “not the exclusive avenue for charging a parole violation and effecting an arrest when the offending conduct has occurred in the presence of the parole officer.” County Court further observed that a parole officer is a peace officer (CPL 2.10 [23]), and that a peace officer is authorized to make a warrantless arrest upon reasonable cause for any offense committed in his presence (CPL 140.25 [1] [a]). A Judge of this Court subsequently granted defendant leave to appeal, and we now reverse.

Executive Law § 259-i (3) (a) (i) provides that when a parole officer having charge of a parolee has reasonable cause to believe that the parolee has violated one or more conditions of his parole, he

“shall report such fact to a member of the board of parole, or to any officer of the division designated by the board, and thereupon a warrant may be issued for the retaking of such person and for his temporary detention in accordance with the rules of the board.”

Similarly, 9 NYCRR 8004.2 (a) specifies that if a parole officer “shall have reasonable cause to believe that [a releasee for whom he has charge] . . . has violated one or more of the conditions of his release in an important respect, such parole officer shall report such fact to a member of the board or a designated officer”; and further that “[n]o officer shall issue a warrant in a case where he is the one who furnishes the report upon which it is based.” In short, the statute and the Division’s implementing regulations do not vest parole officers with the power to make warrantless arrests for parole violations even if committed in their presence. A member of the Board or a designated officer of the Division must issue a warrant.

It can be argued, as the People do here, that an exception to the warrant requirement for those violations taking place in a parole officer’s presence would make sense. The People point out that CPL 410.50 (4) authorizes a probation officer to take a probationer into custody without a warrant when he has “reasonable cause to believe that a person under his supervision pursuant to a sentence of probation has violated a condition of the sentence,” and parolees have generally committed more serious crimes than probationers. The Legislature, however, did not include language comparable to CPL 410.50 (4) in the provisions of the Executive Law governing violation of parole. Nor can there be any doubt that this was a considered legislative choice.

Former section 216 of the Correction Law provided that

“[i]n any case where a parole officer has reasonable cause to believe that [a] parolee has violated the conditions of his parole in an important respect, such parole officer may retake such parolee and cause him to be temporarily detained without a warrant . ... A .. . written request for temporary detention signed by a parole officer who has arrested a parolee without a warrant[ ] shall constitute sufficient authority to the superintendent or other person in charge of any jail, penitentiary, lockup or detention pen to whom it is delivered to hold in temporary detention the parolee named therein; provided, however, the temporary detention pursuant to a written request which is not accompanied by a warrant shall not exceed a period of twenty-four hours, and if a warrant be not delivered to the person in charge of the detention facility prior to the expiration of such twenty-four hour period the parolee must be released at the expiration of such twenty-four hour period.”

Similarly, former section 829 (3) of the Correction Law stated that “[w]here a parole officer has reasonable cause to believe that a person has violated the conditions of his release ,or parole in an important respect, such parole officer may retake such parolee and cause him to be temporarily detained without a warrant.”

The Legislature added the quoted language to former sections 216 and 829 (3) in chapter 658 of the Laws of 1968. The bill enacted as chapter 658 was submitted at the request of the Division, which characterized its provisions as “a practical and workable solution to resolve some present problems and difficulties which exist in relation to issuance of warrants and detention of violators” (see Mem from Div of Parole to Counsel to Governor, Bill Jacket, L 1968, ch 658, at 10). The Department of Correction called the bill a “good” one, which would “enable a parole officer to temporarily detain a parolee who is in violation of parole before he can abscond or get into further trouble” (see Letter of Support from Dept of Correction to Counsel to Governor, Bill Jacket, L 1968, ch 658, at 11). The Attorney General likewise commented that the bill would

“allow parole officers who actually find a parolee violating the condition of his parole to retake that person immediately and cause him to be detained temporarily in a detention facility. Formerly, a report had to be made out of the violation and a Senior Parole Officer, or another person, then issued a warrant. In many cases the parolee in the meantime, knowing he had violated the conditions of his parole, would abscond or evade retaking” (see Mem for Governor from Attorney General, Bill Jacket, L 1968, ch 658, at 5-6).

Nine years later, the Legislature repealed former sections 216 and 829 (3) when it enacted chapter 904 of the Laws of 1977, which reorganized the Division of Parole by removing it from the Department of Correctional Services and placing it in the Executive Department. The subject matter of these former sections of the Correction Law — violation of parole — has ever since been covered by article 12-B of the Executive Law (§ 259 et seq.), which notably nowhere authorizes parole officers to make warrantless arrests for parole violations.

As a final matter, we note that CPL 140.25 (1) (a) does not furnish a way around the warrant requirement in this case. A parole officer is a peace officer (CPL 2.10 [23]), and a peace officer “may arrest a person for . . . [a]ny offense when he has reasonable cause to believe that such person has committed such offense in his presence” (CPL 140.25 [1] [a]). Section 10.00 (1) of the Penal Law, in turn, defines an “offense” as

“conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same.”

Here, Wijkowski testified that he arrested defendant for not following his order to submit to a urine test, which is not an offense within the meaning of section 10.00 (1) of the Penal Law. He never claimed to have arrested defendant for a parole violation — such as, for example, harassment, an offense within the meaning of Penal Law § 10.00 — that would independently justify a peace officer in making a warrantless arrest if committed in his presence.

Accordingly, the order of County Court should be reversed, and the accusatory instrument dismissed.

Chief Judge Kaye and Judges Cifarick, Graffeo, Smith, Pigott and Jones concur.

Order reversed, etc.

      . As a result of the incident on February 8, 2005, defendant was also cited for a violation of the terms of his parole, for which he had a parole revocation hearing.

      . The Bill Jacket for chapter 904 does not disclose why the Legislature took this power away from parole officers.


source: Caselaw Access Project

author: Graffeo, J.

license: Public Domain

text:
    [870 NE2d 128, 838 NYS2d 810]
    State of New York ex rel. Stephen J. Harkavy, on Behalf of John Doe Nos. 13 through 22, Appellant, v Eileen Consilvio, as Executive Director of Manhattan Psychiatric Center and Kirby Forensic Psychiatric Center, Respondent.
    Argued April 26, 2007;
    decided June 5, 2007

      POINTS OF COUNSEL

      Mental Hygiene Legal Service, First Judicial Department, New York City (Diane Goldstein Temkin, Marvin Bernstein, Stephen J. Harkavy and Karen Gomes Andreasian of counsel), for appellant.
    I. Petitioners’ substantive due process rights were violated when they were committed directly to a secure psychiatric hospital absent any criteria for secure psychiatric commitment. (Mark G. v Sabol, 93 NY2d 710; Jackson v Indiana, 406 US 715; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500; Goetz v Crosson, 967 F2d 29; Matter of David B., 97 NY2d 267; People v Betances, 176 Misc 2d 66; Ramos v Town of Vernon, 353 F3d 171; Francis S. v Stone, 221 F3d 100; Baxstrom v Herold, 383 US 107.) II. Petitioners were committed as sexually violent predators without satisfying due process minima required under Kansas v Crane (534 US 407 [2002]). (Kansas v Hendricks, 521 US 346; Doe v Pataki, 120 F3d 1263, 522 US 1122; People v David W., 95 NY2d 130.) III. Petitioners’ commitments were not supported by professional medical judgment. (Rodriguez v City of New York, 72 F3d 1051; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500; Mathews v Eldridge, 424 US 319; Olivier v Robert L. Yeager Mental Health Ctr., 398 F3d 183.) IV. Petitioners have no adequate remedy at law by which to challenge their direetto-Kirby Forensic Psychiatric Center commitments. (Mathews v Eldridge, 424 US 319; Wisconsin v Constantineau, 400 US 433; People v David W., 95 NY2d 130; Matter of Consilvio v Michael B., 307 AD2d 852, 1 NY3d 545, 2 NY3d 701; Savastano v Nurnberg, 77 NY2d 300.) V. Petitioners’ direct-to-Kirby Forensic Psychiatric Center commitments violated the Equal Protection Clause. (Baxstrom v Herold, 383 US 107; Francis S. v Stone, 221 F3d 100; Humphrey v Cady, 405 US 504; Matter of Jamie R. v Consilvio, 6 NY3d 138.) VI. Absent any existing statutory authority, the Office of Mental Health created an illegal mechanism for the secure commitment of petitioners in violation of the State Administrative Procedure Act and the separation of powers doctrine. (People v Two Wheel Corp., 71 NY2d 693; Kansas v Crane, 534 US 407; People v David W, 95 NY2d 130; Doe v Pataki, 3 F Supp 2d 456; People v Cull, 10 NY2d 123; Yaretsky v Blum, 456 F Supp 653; Whiting v Marine Midland Bank-W, 80 Misc 2d 871; Matter of Jamie R. v Consilvio, 6 NY3d 138; Bourquin v Cuomo, 85 NY2d 781; Boreali v Axelrod, 71 NY2d 1.)

      Andrew M. Cuomo, Attorney General, New York City (Benjamin N. Gutman, Barbara D. Underwood and Daniel Smirlock of counsel), for respondent.
    I. The patients’ placement at Kirby Forensic Psychiatric Center satisfies substantive due process because it is based on professional judgment. (Mark G. v Sabol, 93 NY2d 710; Zinermon v Burch, 494 US 113; County of Sacramento v Lewis, 523 US 833; Crosby v State of N.Y., Workers' Compensation Bd., 57 NY2d 305; Washington v Glucksberg, 521 US 702; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500; Matter of Jamie R. v Consilvio, 6 NY3d 138; Francis S. v Stone,
      221 F3d 100; Baxstrom v Herold, 383 US 107; Buthy v Commissioner of Off. of Mental Health, 818 F2d 1046.) II. The patients have been afforded equal protection because any differences in treatment are rationally related to legitimate governmental interests. (People v Parker, 41 NY2d 21; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500; Heller v Doe, 509 US 312; Cleburne v Cleburne Living Center, Inc., 473 US 432; Matter of Consilvio v Michael B., 307 AD2d 852; Hernandez v Robles, 7 NY3d 338.) III. The patients’ remaining arguments are unpreserved and without merit. (Kansas v Crane, 534 US 407; People v Baumann & Sons Buses, Inc., 6 NY3d 404; Matter of Consilvio v Diana W., 269 AD2d 310; Matter of K.L., 1 NY3d 362; Kansas v Hendricks, 521 US 346; Matter of Consilvio v Michael B., 1 NY3d 545; Mathews v Eldridge, 424 US 319; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500; Kulak v City of New York, 88 F3d 63; Wilkinson v Austin, 545 US 209.)
   OPINION OF THE COURT

Graffeo, J.

This is the second appeal to come before this Court concerning convicted sex offenders who were committed to psychiatric hospitals at the conclusion of their prison sentences. In State of N.Y. ex rel. Harkavy v Consilvio (7 NY3d 607 [2006] [Harkavy I]) we ruled that the State improperly used the involuntary civil commitment procedures in Mental Hygiene Law article 9 to transfer offenders directly from prison to mental health facilities and we directed that the Harkavy I petitioners be afforded hearings in Supreme Court to evaluate the need for continued commitment. Because the petitioners in this case were subjected to the same procedures we found inappropriate in Harkavy I, we reverse the order of the Appellate Division and remit this matter to Supreme Court. On remittal, petitioners are entitled to the procedural protections set forth in Mental Hygiene Law article 10 — the new statutory scheme recently adopted by the Legislature governing postincarceration civil commitment of sex offenders.

In the fall of 2005, professionals from the Office of Mental Health (OMH) began to evaluate certain felony sex offenders nearing the completion of state prison sentences to assess whether they posed a danger to themselves or others and suffered from mental conditions that warranted commitment in a psychiatric hospital. The Harkavy I appeal involved a challenge to the admission of 12 sex offenders who were among the first to be transferred to OMH hospitals. Those petitioners were placed in the Manhattan Psychiatric Center, a nonsecure OMH facility. This appeal arises from the subsequent commitment, in November and December 2005, of 10 sex offenders to the Kirby Forensic Psychiatric Center, a secure OMH facility, pursuant to the procedures in Mental Hygiene Law article 9. Based on applications signed by prison superintendents and the certifications of two OMH physicians that each petitioner suffered from a mental illness requiring inpatient treatment, the petitioners were transported to Kirby upon the expiration of their sentences where each was examined by a third OMH physician who also determined that admission was necessary.

Petitioner Stephen J. Harkavy, Deputy Director of Mental Hygiene Legal Service, commenced this habeas corpus proceeding in December 2005 on behalf of the 10 Kirby petitioners. Petitioners raised arguments similar to those presented in Harkavy I — that their civil commitment pursuant to Mental Hygiene Law article 9 was not statutorily permissible. Because the commitment process was initiated before petitioners completed their prison sentences, they contended that they should have been afforded the procedural protections in Correction Law § 402, which requires that inmates serving prison terms be afforded notice and a precommitment hearing before nonemergency commitment to a mental health facility. In addition, petitioners objected to their confinement in Kirby, a secure facility, raising substantive due process, procedural due process and equal protection claims. Petitioners claimed that there was no statutory or medical basis for direct placement in Kirby and no adequate means for them to challenge their secure placement or obtain transfers to a nonsecure OMH facility.

In response to the petition, OMH asserted that it had concluded, based on its own experience, research findings and consultation with experts in other states, that patients who have a “demonstrated history of violence” against others, including those who have committed sex offenses, should initially be treated in secure facilities. According to OMH, the Harkavy I patients had been placed at Manhattan, a nonsecure facility, on a temporary basis because of a lack of space in the State’s secure psychiatric facilities. Security was augmented at Manhattan to facilitate the receipt of the Harkavy I patients, who were confined to a segregated ward with additional staff and a specialized security protocol. Nonetheless, OMH determined that nonsecure placement did not present the optimal environment for treatment of such patients. Rather, secure facilities such as Kirby, which have specially trained staff and perimeter security, afforded patients with histories of violence the best environment for rehabilitation, recreation and treatment therapies. OMH indicated that the petitioners in this case, who all have been convicted of sex offenses, were appropriately treated at Kirby because they met the criteria for secure placement and space was available at that facility.

Supreme Court conditionally granted the habeas corpus petition to the extent of ordering an immediate hearing for each petitioner, adhering to its prior holding in Harkavy I that petitioners’ commitment under Mental Hygiene Law article 9 was improper and that petitioners should instead have been committed using the procedures detailed in Correction Law § 402. The court rejected petitioners’ challenge to their treatment in a secure facility, concluding that the direct-to-Kirby placement was not per se erroneous.

The Appellate Division reversed and dismissed the petition, disagreeing with Supreme Court on the threshold issue of the propriety of petitioners’ commitment under Mental Hygiene Law article 9. With respect to the placement of petitioners in a secure facility, however, the Appellate Division concurred with Supreme Court’s conclusion that petitioners’ constitutional arguments lacked merit. Petitioners pursued an appeal to this Court as of right on the constitutional issues asserted.

While this appeal was pending, we decided Harkavy I. At issue there was whether petitioners were appropriately committed under Mental Hygiene Law article 9 or should have been afforded the precommitment notice and hearing procedures extended to inmates transferred to OMH hospitals pursuant to Correction Law § 402. We recognized that neither statutory scheme had been specifically designed to address this class of mentally ill patients but concluded, “in the absence of a clear legislative directive in regard to inmates nearing their release from incarceration, . . . that Correction Law § 402 is the appropriate method for evaluating an inmate for postrelease involuntary commitment to a mental facility” (Harkavy I, 7 NY3d at 614). We therefore determined, as a matter of statutory interpretation, that inmates transferred directly from a correctional facility to an OMH hospital on a nonemergency basis are entitled to the procedural steps outlined in Correction Law § 402, even if they are nearing completion of or have just completed their prison sentences. Because the Harkavy I petitioners did not have precommitment hearings, we remitted the case to Supreme Court to conduct the necessary hearings.

After the Harkavy I decision, the Legislature filled the statutory void, enacting a legislative scheme designed to address the civil confinement of certain classes of inmates completing their terms of imprisonment. The “Sex Offender Management and Treatment Act” (L 2007, ch 7) — which creates a new Mental Hygiene Law article 10 — provides that offenders convicted of enumerated crimes, including sex offenses, may be transferred to psychiatric hospitals after their release from prison if certain procedures are followed. Article 10 establishes a multi-step process that may lead to the civil commitment of some offenders and the outpatient supervision and treatment of others.

Under the new statutes, inmates nearing the end of their prison terms who are found, after screening by OMH physicians, to suffer from a mental abnormality creating a predisposition to commit sex offenses and who have difficulty controlling their behavior are referred to the Attorney General for review (Mental Hygiene Law § 10.05). If the Attorney General pursues further action, a “sex offender civil management petition” is filed in supreme or county court (Mental Hygiene Law § 10.06 [a]). The offender is then entitled to a probable cause hearing (Mental Hygiene Law § 10.06 [g]) and, ultimately, a jury trial to determine whether the offender suffers from a “mental abnormality” within the meaning of the statute (Mental Hygiene Law § 10.07). In the event of a verdict finding mental abnormality, the court decides whether the offender is a “dangerous sex offender requiring confinement” or “a sex offender requiring strict and intensive supervision” (Mental Hygiene Law § 10.07 [f]). Dangerous sex offenders must be placed in secure OMH treatment facilities. All other patients suffering from a mental abnormality are released for outpatient treatment by OMH and supervision by the Division of Parole.

Although Mental Hygiene Law article 10 was enacted after these petitioners were transferred to psychiatric hospitals, the Legislature chose to include them in the population of offenders covered by the new statutory provisions. The term “detained sex offender” is defined in article 10 to encompass

“[a] person convicted of a sex offense who is, or was at any time after September first, two thousand five, a patient in a hospital operated by [OMH], and who was admitted directly to such facility pursuant to article 9 [of the Mental Hygiene Law] or section four hundred two of the correction law upon release or conditional release from a correctional facility” (Mental Hygiene Law § 10.03 [g] [5]).

These petitioners — who have each been convicted of a “sex offense” (see Mental Hygiene Law § 10.03 [p]) and were transferred directly from correctional facilities to Kirby in November and December 2005 — fall within the purview of the new statutory scheme.

Like the Harkavy I patients, the petitioners here were improperly committed under Mental Hygiene Law article 9. As the State concedes, based on our Harkavy I precedent, the order of the Appellate Division must be reversed and the matter remitted to Supreme Court to give petitioners appropriate commitment hearings. In light of the new legislation, we conclude that those hearings will be conducted in accordance with article 10; petitioners are entitled to have a jury determine the issue of “mental abnormality” and, if necessary, a court will decide if civil confinement is warranted. Since petitioners have been confined to an OMH facility since late 2005, we trust that the parties will conduct the required proceedings expeditiously, as article 10 directs.

Petitioners’ remaining contentions relating to OMH’s decision to place them in a secure hospital are also affected by the new statutory requirements. Mental Hygiene Law article 10 provides that patients who are categorized as “dangerous sex offender[s] requiring confinement” must be placed in secure facilities (Mental Hygiene Law § 10.07 [f]; § 10.03 [o]); all other patients must be released for outpatient treatment and supervision (Mental Hygiene Law § 10.07 [f]; § 10.11). Thus, insofar as article 10 patients are concerned, the Legislature has determined that confinement in a nonsecure facility is not an available option.

Because nonsecure treatment of detained sex offenders is no longer authorized under the relevant statutory provisions, petitioners’ challenges to placement in a secure facility and to the adequacy of the procedures for transfer to nonsecure facilities under Mental Hygiene Law article 9 have been rendered academic. The Legislature having expressed its view that confined article 10 patients must be treated in secure settings, any conclusion we might reach about the propriety of petitioners’ placement prior to the effective date of the new legislation would have no practical effect on the rights or liabilities of these parties (see, People v Furlong, 70 NY2d 756 [1987]; Matter of Murphy v Ziegler, 19 NY2d 596 [1967]; see also, Matter of New York Veteran Police Assn. v New York City Police Dept. Art. I Pension Fund, 61 NY2d 659 [1983]). Similarly, we have no occasion to address petitioners’ separation of powers and State Administrative Procedure Act arguments (to the extent they are preserved for review) because the Legislature has now articulated a state policy relating to the civil commitment of sex offenders and any future proceedings involving these petitioners will be conducted pursuant to that legislative directive.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

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

Order reversed, etc.

      . At oral argument, petitioners’ counsel advised us that this litigation is now being pursued on behalf of seven petitioners since three of the original petitioners have been released from OMH custody.

      . “ ‘[A] [m]ental abnormality’ means a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct” (Mental Hygiene Law § 10.03 [i]).

      . We express no view on the propriety of the standards or procedures adopted in the new legislation. Petitioners are free to raise any objections they deem appropriate upon remittal.

      . Although petitioners complained that the Legislature had not articulated a standard for secure confinement, such a standard has been included in the new legislation: a

        “ ‘[d]angerous sex offender requiring confinement’ means a person who is a detained sex offender suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03 [e]).


author: Jones, J.

text:
    [870 NE2d 142, 838 NYS2d 824]
    The People of the State of New York, Respondent, v Scott Parilla, Appellant.
    Argued May 2, 2007;
    decided June 12, 2007

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Mark W Zeno and Robert S. Dean of counsel), for appellant.
    I. Appellant was denied his constitutional rights to the effective assistance of counsel by his attorney’s inexcusable refusal to move to dismiss the indictment on statute of limitations grounds, where the indictment was filed nearly five years after the five-year statute of limitations expired, and the record demonstrated that the statute would not have been tolled because the prosecution closed the investigation days after the incident, and therefore had not exercised reasonably diligent efforts to locate appellant. (People v Turner, 5 NY3d 476; Hill v Lockhart, 474 US 52; United States v Hansel, 70 F3d 6; Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; People v McDonald, 1 NY3d 109; People v Gruden, 42 NY2d 214; Toussie v United States, 397 US 112; People v Seda, 170 Misc 2d 697, 246 AD2d 675, 93 NY2d 307.) II. The court denied appellant due process by refusing to honor its original 6-to- 12-year sentence promise, vindictively substituting a 7-to-14-year sentence, solely because appellant questioned his status as a second felony offender. (People v Selikoff, 35 NY2d 227; People v Young, 94 NY2d 171; North Carolina v Pearce, 395 US 711; People v Van Pelt, 76 NY2d 156; People v Taylor, 65 NY2d 1; Blackledge v Allison, 431 US 63; Santobello v New York, 404 US 257; People v Hicks, 98 NY2d 185; People v Young, 94 NY2d 171; Bordenkircher v Hayes, 434 US 357.)

      Robert T. Johnson, District Attorney, Bronx (Yael V Levy,

      Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent.
    I. Counsel was not ineffective solely for declining to move to dismiss the indictment on statute of limitations grounds, where filing such a motion would have been futile, and counsel secured defendant a very favorable plea disposition. (People v Caban, 5 NY3d 143; People v Stultz, 2 NY3d 277; People v Turner, 5 NY3d 476; People v Baldi, 54 NY2d 137; People v Benevento, 91 NY2d 708; Strickland v Washington, 466 US 668; Hill v Lockhart, 474 US 52; People v Paulin, 25 NY2d 445; People v Glover, 87 NY2d 838; People v Baumann & Sons Buses, Inc., 6 NY3d 404.) II. Defendant was legally sentenced to an agreed-upon 7-to-14-year prison term and waived his right to claim otherwise on appeal. (People v McConnell, 49 NY2d 340; People v Danny G., 61 NY2d 169; People v Hicks, 98 NY2d 185; People v Selikoff, 35 NY2d 227; North Carolina v Pearce, 395 US 711; Williams v New York, 337 US 241; People v Herber, 24 AD3d 1317, 6 NY3d 814; People v Rogers, 81 AD2d 564, 56 NY2d 552; People v Young, 94 NY2d 171; People v Van Pelt, 76 NY2d 156.)
   OPINION OF THE COURT

Jones, J.

The issue in this appeal is whether defendant was denied effective assistance of counsel when his attorney failed to file a motion to dismiss the indictment on statute of limitations grounds {see CPL 30.10). We conclude that defendant waived review of the statute of limitations issue when he entered his guilty plea.

In 1996, while in prison serving a 71/2 to 15 year sentence on charges unrelated to the matter at bar, defendant produced a blood sample pursuant to Executive Law § 995-c for inclusion in the DNA data bank. In 2003, this sample linked him to a sexual assault, involving two victims, that had occurred on August 29, 1993. On or about March 19, 2003, defendant was charged with one “count of first degree rape and one count of first degree sodomy.

The 1993 incident had been reported to the police and a semen sample was collected from the rape victim and preserved in a sexual assault evidence kit. The police report described the perpetrator, his clothing and his automobile. According to a complaint follow-up form dated September 4, 1993, the mother of the rape victim stated that her daughter had been sent to stay with family members in Massachusetts and that she wanted to drop the complaint. On or about September 13, 1993, the case was closed as “[u]nfounded” for the foregoing reasons, and also allegedly because no medical evidence supporting the allegations existed, the rape victim refused to view photographs, and after the complaint was filed, there was no contact between the police and the rape victim. The police records do not indicate whether the police attempted to contact the sodomy victim.

Defendant filed a pro se motion to dismiss the indictment on statute of limitations grounds (see CPL 30.10). However, Supreme Court refused to entertain the motion because defendant was represented by counsel. The court warned defense counsel “not to advance frivolous motions.” According to defendant, his counsel said she would adopt his pro se motion, but in an off-the-record discussion the court indicated that a CPL 30.10 motion would be denied. On the record, the court further indicated that counsel should consider the tolling provisions of CPL 30.10 (4) (a) (ii). Ultimately, defendant’s attorney did not file the motion.

Subsequently, defendant pleaded guilty to one count of first degree rape and one count of first degree sodomy in satisfaction of the indictment. As part of the plea agreement, defendant waived his right to appeal. Prior to the plea allocution, there was an extensive colloquy between the court and defendant concerning whether defendant would be credited for the time he had been incarcerated on his prior conviction. Defendant asked if the sentence would be “nunc pro tunc.” The court advised defendant, “I can’t credit you for time you never served by calling it nunc pro tunc.” There was discussion about defendant’s maximum expiration date on the case as well as the maximum expiration date on his prior conviction. After the discussion of his maximum expiration and conditional release dates, the court indicated that it would impose a sentence of 6 to 12 years on each count, as a predicate felon, to run concurrently with his previous conviction. During the plea allocution, the court explained defendant’s right to trial by jury and his right to appeal, which he said he understood he was waiving by his guilty plea. In response to defendant’s query regarding whether he would also be waiving any constitutional claims, the court responded in the following colloquy:

“the court: You waived all your constitutional rights to trial.
“the defendant: But fundamental constitutional rights you can’t waive.
“the court: What right would that be? . . .
“What would you want to do on appeal in this case? . . . There [are] no hearings and no rulings made on applications you made of a constitutional nature. What exactly are the rights you want to preserve?”

Defendant then asked the court about his exception to a ruling on the DNA evidence.

“the court: That would be waived.
“the defendant: That would be waived, the Fourth Amendment right?
“the court: Absolutely.
“the defendant: All right. I thought that you could only waive the statutory rights, not the constitutional rights.
“the court: You can waive a constitutional right. It has to be entered in a free and knowing manner. I’m not forcing you to do it. I’m telling you this is an agreement. I know that you’re not happy.
“the defendant: It’s part of the agreement. I’m going to have to take it.”

On two occasions after defendant accepted the plea, he objected to the particular felony conviction presented as the “predicate” felony for sentencing. Finally, at sentencing, Supreme Court informed defendant that upon reading the probation report, it could no longer give him the promised sentence of 6 to 12 years and that defendant would be sentenced to 7 to 14 years. The court advised defendant that he could withdraw the plea and proceed to trial if he did not want to accept that sentence. Defendant declined to withdraw his plea, agreed to accept the sentence and was sentenced accordingly on September 16, 2003.

One day after sentencing, defendant moved to vacate the judgment pursuant to CPL 440.10, claiming (1) he was denied effective assistance of counsel because his lawyer did not move to dismiss the indictment on statute of limitations grounds, (2) the court improperly enhanced his sentence when it reneged on the promised sentence of 6 to 12 years and (3) the State unconstitutionally obtained his blood sample.

Supreme Court denied defendant’s motion, holding that his “plea of guilty operated as a waiver of his claimed statutory right to dismissal of the indictment under CPL § 30.10.” In a footnote, the court stated that “[w]hile not being dispositive, . . . even if addressed on its merits, defendant’s motion would be denied.” The Appellate Division unanimously affirmed the judgment of conviction and the order denying defendant’s CPL 440.10 motion to vacate (33 AD3d 363 [2006]). A Judge of this Court granted defendant leave to appeal, and we now affirm.

We agree with Supreme Court that defendant waived the statute of limitations defense by pleading guilty. In People v Hansen (95 NY2d 227 [2000]), we explained that “[a] plea of guilty . . . marks the end of a criminal case, not a gateway to further litigation” (id. at 230, citing People v Taylor, 65 NY2d 1, 5 [1985]). Generally, a defendant who admits guilt in open court “may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered” (id., citing People v Di Raffaele, 55 NY2d 234, 240 [1982]). Thus, under a guilty plea, a defendant waives specific rights attached to trial and forfeits “the right to revive certain claims made prior to the plea” (id.).

Although a guilty plea does not extinguish every claim on appeal, only a limited number of claims survive a valid waiver. These are either jurisdictional matters, such as an insufficient accusatory instrument, or rights of a constitutional dimension that “go to the very heart of the process (such as the constitutional speedy trial right, the protection against double jeopardy or a defendant’s competency to stand trial)” (id.). Certain claims are simply foreclosed by a guilty plea (see e.g. Di Raffaele, 55 NY2d 234 [1982] [preindictment prosecutorial misconduct]; People v Rodriguez, 55 NY2d 776 [1981] [selective prosecution]; Taylor, 65 NY2d 1 [1985] [failure to provide CPL 710.30 notice]; People v Friscia, 51 NY2d 845 [1980] [speedy trial]).

The statute of limitations under CPL 30.10 is not a jurisdictional matter, nor is it a right of constitutional dimension like the aforementioned rights that survive a guilty plea. Clearly, the right to assert this defense can be waived (see People v Mills, 1 NY3d 269 [2003]). By pleading guilty, defendant waived the defense.

Defendant attempts to sidestep the consequences of his plea by claiming ineffective assistance of counsel. Under the circumstances of this case, were we to consider defendant’s statute of limitations claim on the merits, we would be reviewing the very argument that defendant waived when he pleaded guilty and waived his right to appeal (see People v Lopez, 6 NY3d 248 [2006] [holding that a defendant’s valid waiver of the right to appeal includes the waiver of the right to invoke the Appellate Division’s interest of justice jurisdiction to reduce the sentence]). In any event, in light of Supreme Court’s indication that it would deny defendant’s CPL 30.10 motion, it was understandable that defense counsel would not make the motion. Instead counsel secured a favorable plea agreement that produced a considerably lower sentence than the maximum prison term defendant faced.

Moreover, this is not a case where the alleged ineffectiveness of counsel goes to the voluntariness of defendant’s plea and waiver of appeal. To the contrary, the record establishes that defendant’s plea was intelligent, voluntary and knowing. Before he pleaded guilty, defendant was aware of the potential statute of limitations defense and the possible application of the CPL 30.10 (4) (a) (ii) tolling provision. After having an opportunity to weigh his options, defendant chose not to assert the defense, declined his right to a jury trial and waived his right to raise the limitations argument on appeal.

Finally, defendant’s claim that a vindictive sentence was imposed is without merit.

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

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

Order affirmed.

      . In support of his argument, defendant, who was indicted less than 10 years after the instant crime was committed, relies on People v Turner (5 NY3d 476 [2005]). However, unlike Turner (at 481), the statute of limitations argument underlying defendant’s claim of ineffective assistance of counsel is not a “winning argument” because the five-year limitations period, as extended by the maximum tolling period (five additional years) under CPL 30.10 (4) (a) (ii), had not expired.

      . As we held in People v Satterfield (66 NY2d 796 [1985]), “[fit is not for this court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” (id. at 799-800).


text:
    [870 NE2d 1136, 839 NYS2d 706]
    Mitchell Benesowitz, Appellant, v Metropolitan Life Insurance Company, Plan Administrator of Honeywell Long Term Disability Income Plan, et al., Respondents.
    Argued May 30, 2007;
    decided June 27, 2007

      POINTS OF COUNSEL

      Gisonni & Harms, LLP, Woodbury (Eve-Lynn Gisonni, Richard Harms and Scott M. Harrigan of counsel), for appellant.
    Insurance Law § 3234 (a) (2) should be interpreted to impose only a 12-month waiting period and not as an absolute bar to coverage for disabled individuals who suffer from preexisting conditions and become disabled within the first 12 months of coverage. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Tompkins v Hunter, 149 NY 117; Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363; Rust v Reyer, 91 NY2d 355; Ferres v City of New Rochelle, 68 NY2d 446; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854; Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444.)

      Amy K. Posner, Long Island City, and Skadden, Arps, Slate, Meagher & Flom LLP, New York City (Preeta D. Bansal and Sarah E. McCallum of counsel), for respondent.
    I. The plain language of Insurance Law § 3234 (a) (2) and its accompanying regulation permits the use of preexisting condition exclusions. (In re Joint E. & S. Dist. Asbestos Litig., 993 F2d 313; Guaranty Natl. Ins. Co. v Bayside Resort, Inc., 635 F Supp 1456; Gibbs ex rel. Estate of Gibbs v CIGNA Corp., 440 F3d 571; Harvey v Astra Merck Inc. Long Term Disability Plan, 348 F Supp 2d 536; McGinnis v Allianz Life Ins. Co. of N. Am., 77 F Supp 2d 1297, 228 F3d 417; Bremer v Hartford Life & Acc. Ins. Co., 16 F Supp 2d 1057; Matter of Breslin v Connors, 10 AD3d 471; Matter of Branford House v Michetti, 81 NY2d 681.) II. Other states that have chosen to reguláte preexisting condition provisions in group disability insurance policies permit exclusions like the one at issue here. (McGinnis v Allianz Life Ins. Co. of N. Am., 77 F Supp 2d 1297.) III. The legislative history of Insurance Law § 3234 (a) (2) supports Metropolitan Life Insurance Company’s interpretation. (Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444.) IV. The Superintendent of Insurance’s approval of the policy language is evidence of its legality, and his newly-minted interpretation of Insurance Law § 3234 (a) (2) is not entitled to deference. (Allstate Ins. Co. v Jacobs, 208 AD2d 578; Matter of Allstate Ins. Co. v Cipolla, 226 AD2d 456; Davis v Liberty Mut. Ins. Co., 267 F3d 124; AMEX Assur. Co. v Caripides, 179 F Supp 2d 309, 316 F3d 154; Burke v First UNUM Life Ins. Co., 975 F Supp 310; Hertz Corp. v Corcoran, 137 Misc 2d 403; Matter of Union Indent. Ins. Co. of N.Y., 92 NY2d 107; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444; Preferred Mut. Ins. Co. v State of New York, 196 AD2d 384.)

      Andrew M. Cuomo, Attorney General, New York City (Barbara D. Underwood, Benjamin N. Gutman and Cecelia Chang of counsel), for Eric R. Dinallo, amicus curiae.
    Insurance Law § 3234 (a) (2) requires an insurer to begin paying benefits for a disability caused by a preexising condition once the insured has been covered for 12 months. (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Auer v Robbins, 519 US 452; Matter of Consolidated Mut. Ins. Co. [Arcade Cleaning Contrs. — Superintendent of Ins.], 60 NY2d 1; Franklin v John Hancock Mut. Life Ins. Co., 298 NY 81; FDA v Brown & Williamson Tobacco Corp., 529 US 120; Heard v Cuomo, 80 NY2d 684; People ex rel. Chadbourne v Voorhis, 236 NY 437; Gustafson v Alloyd Co., 513 US 561.)

      Barnes & Thornburgh LLP, Grand Rapids, Michigan (Patrick E. Mears of counsel), Carolyn Doppelt Gray, Washington, D.C., Teresa L. Jakubowski, Lisa Tate, Michael S. Spector and Kathryn Wilber for American Council of Life Insurers and others, amici curiae.
    I. Preexisting condition exclusions play a vital role in group disability policies. II. Preexisting condition exclusions that exclude coverage for disabilities arising during the exclusionary period do not violate Insurance Law § 3234 (a) (2). (Matter of Excellus Health Plan, Inc. v Serio, 2 NY3d 166; Riley v County of Broome, 95 NY2d 455; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Tompkins v Hunter, 149 NY 117; Robinson v Shell Oil Co., 519 US 337; BFP v Resolution Trust Corporation, 511 US 531; Matter of Polan v State of N.Y.

      Ins. Dept., 3 NY3d 54; Continental Cas. Co. v Equitable Life Assur. Socy. of U. S., 52 NY2d 228; Kaplan v Equitable Life Assur. Socy. of U.S., 177 Misc 792, 261 App Div 1067; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98.) III. Interpreting Insurance Law § 3234 as permitting only a waiting period for benefit payments would negatively impact the very insured it was intended to benefit.

      Hinman Straub, EC., Albany (Fredric L. Bodner, David W. Novak and Leanne R. Kontogiannis of counsel), for Life Insurance Council of New York, Inc., amicus curiae.
    I. The plain language of Insurance Law § 3234 (a) (2) and past practice demonstrate that a permanent exclusion of coverage for disabilities occurring within the first 12 months of coverage, as a result of a preexisting condition, is intended. (Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Guido v New York State Teachers’ Retirement Sys., 94 NY2d 64; Matter of Gruber [New York City Dept. of Personnel — Sweeney], 89 NY2d 225; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98; State Div. of Human Rights v Genesee Hosp., 50 NY2d 113; Town of E. Hampton v Cuomo, 179 AD2d 337.) II. The Insurance Department’s interpretation is contrary to the very purpose of preexisting condition clauses in group disability income policies. (Lawrence v Northwestern Natl. Life Ins. Co., 716 F Supp 883.) III. If the Court of Appeals adopts plaintiffs interpretation of Insurance Law § 3234 (a) (2), group disability insurance will become more expensive and less available to the public. IV The analogy between Insurance Law § 3234 (a) (2), pertaining to group disability insurance, and the provisions of Insurance Law § 3232 (b), pertaining to health insurance, implicates widely different policy considerations and does not require the same result.
   OPINION OF THE COURT

Graffeo, J.

The United States Court of Appeals for the Second Circuit has asked us to decide how Insurance Law § 3234 (a) (2) affects an employee’s eligibility to receive benefits under the employer’s group disability plan when the disability is caused by a preexisting medical condition. We conclude that the statute allows insurers to toll benefits during the first 12 months of coverage, but does not permit them to impose an absolute bar to coverage for disabilities stemming from preexisting conditions and arising during that 12-month period.

Plaintiff Mitchell Benesowitz began a new job with Honeywell International, Inc. on April 1, 2002. He was immediately covered under Honeywell’s short- and long-term group disability insurance plans, now administered by defendant Metropolitan Life Insurance Company (MetLife). In the three months preceding his Honeywell employment, plaintiff had been treated for kidney disease. By October 2002, plaintiff could no longer work because of his illness and he applied for short-term disability benefits, which MetLife paid. Plaintiff later sought long-term disability benefits. MetLife denied the application based on the following exclusion in the plan:

“Benefits will not be paid for any period of Disability caused or contributed to by, or resulting from, a Pre-[E]xisting Condition. A ‘Pre-Existing Condition’ means any Injury or Sickness for which you incurred expenses, received medical treatment, care or services including diagnostic measures, took prescribed drugs or medicines, or for which a reasonable person would have consulted a Physician within three months before the most recent effective date of your coverage.
“The Pre-Existing Condition limitation will apply to any added benefits or increases in benefits. This limitation will not apply to a period of Disability that begins after you are covered for at least 12 months after the most recent effective date of your coverage, or the effective date of any added or increased benefits.”

In July 2003, plaintiff filed an administrative appeal with MetLife, claiming that the plan’s preexisting condition exclusion conflicted with Insurance Law § 3234 (a) (2), which provides that “[n]o pre-existing condition provision shall exclude coverage for a period in excess of twelve months following the effective date of coverage for the covered person.” MetLife denied the appeal. Plaintiff then commenced this action in federal court to contest MetLife’s denial of long-term disability benefits. Both parties moved for summary judgment.

The United States District Court for the Eastern District of New York granted MetLife summary judgment and dismissed the complaint. Relying on Pulvers v First UNUM Life Ins. Co. (210 F3d 89 [2d Cir 2000]), the court rejected plaintiffs contention that the plan’s preexisting condition exclusion violated Insurance Law § 3234 (a) (2).

On appeal, the Second Circuit clarified that Pulvers did not resolve the statutory interpretation question and therefore certified the following question to this Court:

“Whether New York Insurance Law § 3234 (a) (2) means that (1) a policy may impose a twelve-month waiting period during which no benefits will be paid for disability stemming from a pre-existing condition and arising in the first twelve months of coverage or (2) a policy may lawfully include a permanent absolute bar to coverage of disabilities resulting from pre-existing conditions that trigger disability within the first twelve months of the employee’s coverage” (471 F3d 348, 353 [2006]).

Plaintiff argues that section 3234 (a) (2) is a tolling provision that permits insurers only to delay the payment of benefits for disabilities arising from preexisting conditions during the first 12 months of coverage. In plaintiffs view, insurers must provide plan benefits if the disability continues beyond the 12-month period. In accordance with this interpretation, plaintiff contends that MetLife was obligated to pay him long-term disability benefits beginning in April 2003 — 12 months after his coverage began. The Superintendent of Insurance of the State of New York, appearing as amicus curiae, endorses plaintiffs construction of the statute. MetLife counters that section 3234 (a) (2) was intended to allow insurers to exclude coverage permanently for any disability resulting from a preexisting condition that arises within the first 12 months of coverage. Under this analysis, only disabilities commencing after the 12-month window are covered by the plan. MetLife’s position is supported by amici curiae Life Insurance Council of New York, Inc. and other national insurance organizations.

Although the statute is not a model of clarity, we are persuaded that plaintiff’s construction is the correct one. Enacted in 1993, Insurance Law § 3234 provides:

“(a) Every group or blanket policy issued or issued for delivery in this state which provides benefits by reason of the disability of the insured and which includes a pre-existing condition provision shall contain in substance the following provision or provisions which in the opinion of the superintendent are more favorable to the members of the group:
“(1) In determining whether a pre-existing condition provision applies to an eligible person, the group or blanket disability policy shall credit the time the person was previously covered under a previous group or blanket disability insurance plan or policy or employer-provided disability benefit arrangement, if the previous coverage was continuous to a date not more than sixty days prior to the effective date of the new coverage. The credit shall apply to the extent that the previous coverage or level of benefits was substantially similar to the new coverage or level of benefits; and
“(2) No pre-existing condition provision shall exclude coverage for a period in excess of twelve months following the effective date of coverage for the covered person.
“(b) Nothing herein shall be construed to prohibit or restrict an insurer from utilizing other forms of underwriting for the members of the group in lieu of, or in addition to, the pre-existing condition provision described in subsection (a) of this section.”

In matters of statutory interpretation, “our primary consideration is to ascertain and give effect to the intention of the Legislature” (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006] [internal quotation marks and citation omitted]). In discerning the legislative intent underlying section 3234 (a) (2), it is instructive to examine Insurance Law § 3232, a health insurance statute. Indeed, section 3234 tracks the language of section 3232, which was added a year earlier and places similar limitations on preexisting condition provisions in health insurance policies. Both statutes contain a portability provision requiring insurers to credit the time a person previously was covered under a comparable plan for purposes of determining the applicability of a preexisting condition provision (see Insurance Law § 3232 [a]; § 3234 [a] [1]). This portability feature was designed to enable individuals to change jobs or insurance plans without fear of having to wait for coverage to take effect. Most relevant to the issue here, both statutes also prescribe a 12-month maximum time frame for preexisting condition provisions (see Insurance Law § 3232 [b]; § 3234 [a] [2]).

Section 3232 (b), the health insurance provision, employs language nearly identical to section 3234 (a) (2). The parties agree that under section 3232 (b), although insurers may limit or preclude coverage for medical claims stemming from preexisting conditions during the first 12 months (assuming there is no portability of coverage), the insurers must cover such claims thereafter. Section 3232 (b) therefore functions as a tolling or waiting period because it mandates full health coverage — even for preexisting medical conditions — once the 12-month period expires. Insurers are not permitted to bar health coverage completely under section 3232 (b).

In choosing to use the same “for a period in excess of twelve months” language in section 3234 (a) (2) to define the time frame, the Legislature sought to create a similar tolling provision for preexisting conditions in group disability policies. We have observed in this regard that “whenever a word is used in a statute in one sense and with one meaning, and subsequently the same word is used in a statute on the same subject matter, it is understood as having been used in the same sense” (Riley v County of Broome, 95 NY2d 455, 466 [2000] [internal quotation marks and citation omitted]). If insurers máy exclude health coverage for up to 12 months under section 3232 but must pay benefits for medical claims related to preexisting conditions after that time period, the statute should operate the same way for group disability plans under section 3234 (a) (2).

The legislative history buttresses our conclusion that section 3234 should be interpreted in a manner consistent with section 3232 (see id. at 463 [noting that “the legislative history of an enactment may also be relevant and is not to be ignored, even if words be clear” (internal quotation marks and citation omitted)]). The Senate memorandum in support of the bill explains that it “adds a new section 3234 to the Insurance Law to establish similar standards for pre-existing conditions for disability insurance policies” (Senate Introducer Mem in Support, Bill Jacket, L 1993, ch 650). Similarly, the Assembly sponsor described the bill as extending the standards applicable to preexisting conditions in health insurance policies to group disability insurance policies (see Assembly Mem in Support, Bill Jacket, L 1993, ch 650).

In contrast, when the Legislature intended to allow insurance policies to include a permanent bar to coverage for disabilities arising from a preexisting condition during a prescribed time period, it used different language to accomplish this result. Insurance Law § 3216 (d) (1) (B) (ii), applicable to individual disability policies, states:

“No claim for loss incurred or disability (as defined in the policy) commencing after two years from the date of issue of this policy shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name or specific description effective on the date of loss had existed prior to the effective date of coverage of this policy” (emphasis added).

By using the phrase “commencing, after,” the Legislature made clear that section 3216 (d) (1) (B) (ii) authorizes insurers to bar benefit coverage completely for claims arising during the first two years of coverage. And statutes in other states that permit insurers to preclude coverage totally for certain disability claims use analogous language (see e.g. Colo Rev Stat Ann § 10-16-214 [3] [a] [V] [C] [“In no event shall a group disability income insurance policy deny, exclude, or limit benefits for a covered individual because of a preexisting condition for a disability commencing more than twelve months following the effective date of such individual’s coverage” (emphasis added)]; Ga Code Ann § 33-24-26.1 [c] [“No policy or certificate of group disability income insurance shall be issued or delivered in this state which limits or excludes payment of benefits for a disability resulting from a preexisting condition if that disability occurs more than 24 months following the effective date of an insured’s coverage under such policy” (emphasis added)]). No comparable language appears in Insurance Law § 3234 (a) (2).

Finally, interpreting section 3234 (a) (2) as allowing insurers to impose a tolling period rather than an absolute bar to benefits does not prevent insurers from excluding or limiting disability coverage based on an individual’s prior medical history. Section 3234 (b) recognizes that insurance companies may use individual underwriting procedures in determining a person’s eligibility for coverage under a group disability policy. The Superintendent indicates in his brief that such individual underwriting practices for group disability policies may involve the review of an applicant’s medical history or the results of a medical examination. After assessing the individual’s risk, the insurer may charge the applicant a higher premium, exclude coverage for a specified condition or decline to provide coverage.

Accordingly, the certified question should be answered as follows: New York Insurance Law § 3234 (a) (2) means that a policy may impose a 12-month waiting period during which no benefits will be paid for a disability stemming from a preexisting condition and arising in the first 12 months of coverage.

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

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered as follows: New York Insurance Law § 3234 (a) (2) means that a policy may impose a 12-month waiting period during which no benefits will be paid for disability stemming from a preexisting condition and arising in the first 12 months of coverage.

      . The Insurance Law contains three distinct statutes denominated as section 3234. The provision at issue here was enacted by chapter 650 of the Laws of 1993.

      . Insurance Law § 3232 (b) provides, in relevant part: “No pre-existing condition provision shall exclude coverage for a period in excess of twelve months following the enrollment date of coverage for the covered person.”


author: CIPARICK, J.

text:
    [870 NE2d 1141, 839 NYS2d 711]
    The People of the State of New York, Respondent, v Keith Antwine, Appellant.
    Argued June 7, 2007;
    decided June 28, 2007

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Jonathan Marvinny, Richard M. Greenberg and Sara Gurwitch of counsel), for appellant.
    The prosecution failed to present legally sufficient evidence that Keith Antwine committed the crime of escape in the second degree when Mr. Antwine, in his attempt to escape from the hospital where he was being detained in custody, was apprehended by the officer guarding him before he made it out of the hospital. (People v Neely, 248 AD2d 996; People v Hutchinson, 56 NY2d 868; Jackson v Virginia, 443 US 307; People v Conway, 6 NY3d 869; People v Santi, 3 NY3d 234; People v Piazza, 48 NY2d 151; People v Gerard, 50 NY2d 392; People ex rel. Powell v Warden of Kings County Hosp., 73 AD2d 654; People v Mesa, 188 AD2d 688, 81 NY2d 844; People v Glover, 134 AD2d 448.)

      Robert T Johnson, District Attorney, Bronx (Frances Y. Wang and Joseph N Ferdenzi of counsel), for respondent.
    Defendant was properly convicted of escape in the second degree (Penal Law § 205.10 [2]). (People v Angelo, 88 NY2d 217; People v Iannelli, 69 NY2d 684, 482 US 914; People v Hutchinson, 56 NY2d 868; People v Pilgrim, 287 AD2d 315; People v Allen, 286 AD2d 633; People v Sargent, 194 AD2d 865; People v Mesa, 188 AD2d 688; People v Bleakley, 69 NY2d 490; People v Neely, 248 AD2d 996; People v Glover, 134 AD2d 448.)
   OPINION OF THE COURT

CIPARICK, J.

The issue in this appeal is whether defendant was properly convicted of escape in the second degree under Penal Law § 205.10 (2). We agree with the Appellate Division that he was.

On April 22, 2003, defendant was arrested after stealing an automobile with two children in the back seat and colliding with another vehicle while he was trying to flee. Defendant was taken to the precinct for processing. While there, he complained of a toothache and a hernia, and Officer Bohan-McDowell escorted him, in handcuffs, to St. Barnabas Hospital by ambulance. Defendant was brought to the emergency room where Officer Bohan-McDowell handcuffed his right wrist to his assigned bed. Shortly thereafter, defendant complained that the handcuff was too tight, and the officer observed a visible discoloration of defendant’s wrist. She placed the key in the cuff and started to loosen it when defendant lifted up on the cuff and ran away.

The officer caught up to defendant about 25 to 30 feet down the hallway and grabbed him, but he broke free. He then made a right turn and headed for the hospital exit approximately 12 feet away. After defendant got through the first of two sets of exit doors, the officer tackled defendant and remained on top of him until two doctors and another officer helped subdue him.

Defendant was charged with robbery in the second and third degrees as well as grand larceny in the fourth degree and other crimes. After a jury trial he was acquitted of robbery but convicted of grand larceny in the fourth degree, escape in the second degree and two counts of endangering the welfare of a child. Defendant was sentenced to concurrent terms of 2 to 4 years imprisonment on the grand larceny and escape counts and one year on each endangering the welfare of a child count. The Appellate Division affirmed the conviction, as we do.

Defendant claims that legally sufficient evidence did not exist to support his conviction for escape in the second degree under Penal Law § 205.10 (2). Rather, defendant asks that his conviction be reduced to attempted escape in the second degree.

Penal Law § 205.10 states that “[a] person is guilty of escape in the second degree when: ... 2. Having been arrested for, charged with or convicted of a class C, class D or class E felony, he escapes from custody.” Relying on People v Neely (248 AD2d 996 [4th Dept 1998] [holding that legally sufficient evidence did not exist to support a conviction for escape under Penal Law § 205.10 (2) where defendant fled from a courtroom but was apprehended on the same floor within the courthouse]), defendant argues that in order to be convicted of the crime of escape under Penal Law § 205.10 (2), he would have had to make it past the hospital exit doors. Anything short of leaving the building, according to defendant, was simply an attempted escape. We disagree.

While a crossing-the-threshold rule does exist under Penal Law § 205.10 (1), the same is not true here. Under subdivision (1), a person is guilty of escape in the second degree when he or she “escapes from a detention facility.” Thus, under that subdivision, a tangible threshold line exists as to whether or not defendant exited the facility. However, under subdivision (2), we are concerned with whether defendant escaped the realm of custody — the restraint imposed by the public servant (see Penal Law § 205.00 [2]). Such escape, as defined by the New York Criminal Jury Instructions, “means to get away, break away, get free or get clear, with the conscious purpose to evade custody” (CJI2d[NY] Penal Law § 205.10 [2]). Indeed, as we explained in People v Hutchinson (56 NY2d 868, 870 [1982]), “[t]he commonly understood definition of the verb ‘escape’ is ‘to get away (as by flight or conscious effort): break away, get free or get clear.’ ”

Here, the statute requires proof that defendant “escape[d] from custody.” “Custody,” in turn, “means restraint by a public servant” (Penal Law § 205.00 [2]). Hence, once the People show that a defendant broke free or got away from the restraint or control of the officer, as defendant did here by physically removing restraints to free himself from the controls imposed and running away, sufficient evidence exists to support the crime of escape. This is not to say that simply circumventing one’s handcuffs constitutes an escape. Had defendant pushed off the handcuff but remained within the officer’s control, he may have been found guilty of an attempted escape. Rather, here it was the point when defendant was no longer under the control of the officer and had removed himself from her custody without authorization — when she had to give chase, placing herself and the public at risk — that the elements of Penal Law § 205.10 (2) were sufficiently met.

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

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

Order affirmed.

      . Although defendant was not indicted for attempted escape in the second degree, the parties agreed to submit the charge to the jury as an alternative to escape in the second degree. The jury repeatedly asked the court for clarification as to the differences between the two crimes. Defendant’s assertion that Supreme Court misinstructed the jury about the proper standard for determining whether defendant was guilty of escape or attempted escape is without merit.

      . To apply a Penal Law § 205.10 (1) analysis in a non-detention facility setting, as proffered by defendant, would lead to incongruous results. In this particular instance, it would render the critical facts that defendant traveled 35 to 45 feet through multiple doorways after pushing through his handcuff and shoving an officer completely immaterial as defendant fell a few feet short of the final doorway. But, had the breach from custody occurred a few feet inside the hospital exit doors and defendant had managed to leave the building that would constitute a completed escape under defendant’s rationale— not a workable rule under subdivision (2) of Penal Law § 205.10.


author: Read, J.

text:
    [870 NE2d 1144, 839 NYS2d 714]
    Laurence Broggy et al., Appellants, v Rockefeller Group, Inc., et al., Respondents.
    Argued June 6, 2007;
    decided July 2, 2007

      POINTS OF COUNSEL

      Kelner & Kelner.; New York City (Gail S. Kelner and Joshua D. Kelner of counsel), for appellants.
    I. The commercial window cleaning performed by plaintiff at the time of the subject occurrence was clearly within the scope of Labor Law § 240 (1). (Bauer v Female Academy of Sacred Heart, 97 NY2d 445; Rivers v Sauter, 26 NY2d 260; Connors v Boorstein, 4 NY2d 172; Brown v Christopher St. Owners Corp., 87 NY2d 938; Smith v Shell Oil Co., 85 NY2d 1000; Joblon v Solow, 91 NY2d 457; Williamson v 16 W. 57th St. Co., 256 AD2d 507; Harzewski v Centennial Dev., 270 AD2d 888; D'Amico v Manufacturers Hanover Trust Co., 177 AD2d 441; Panek v County of Albany, 99 NY2d 452.) II. By overruling its own precedent in Bustamante v Chase Manhattan Bank (241 AD2d 327 [1997]) and erroneously limiting the plain language of Labor Law § 240 (1), the Appellate Division, First Department has exacerbated a disagreement among the Appellate Division departments. (Bauer v Female Academy of Sacred Heart, 97 NY2d 445; Brown v Christopher St. Owners Corp., 87 NY2d 938; Connors v Boorstein, 4 NY2d 172; Joblon v Solow, 91 NY2d 457; Smith v Shell Oil Co., 85 NY2d 1000; Panek v County of Albany, 99 NY2d 452; Rukaj v Eastview Holdings, LLC, 36 AD3d 519; Stanley v Carrier Corp., 303 AD2d 1022; Vasey v Pyramid Co. of Buffalo, 258 AD2d 906; Chapman v International Bus. Machs. Corp., 253 AD2d 123.) III. The Appellate Division misinterpreted the facts of the case and applicable law in concluding that there was no issue of fact concerning whether the work could have been performed from the ground. (Gordon v Eastern Ry. Supply, 82 NY2d 555; Sniadecki v Westfield Cent. School Dist., 272 AD2d 955; Dasilva v A.J. Contr. Co., 262 AD2d 214; Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878; Megna v Tishman Constr. Corp. of Manhattan, 306 AD2d 163; Hock v Builtland Partners, 165 Misc 2d 1032, 233 AD2d 260; Aiello v Rockmor Elec. Enters., 255 AD2d 470; LaJeunesse v Feinman, 218 AD2d 827; Zuckerman v City of New York, 49 NY2d 557; Bryan v City of New York, 206 AD2d 448.)

      Carfora Klar Gallo Vitucci Pinter & Cogan, LLP, New York City (Kimberly A. Ricciardi of counsel), for respondents.
    I. The Appellate Division, First Department properly held that the routine cleaning work performed by plaintiff was not encompassed by Labor Law § 240 (1). (Panek v County of Albany, 99 NY2d 452; Joblon v Solow, 91 NY2d 457; Brown v Christopher St. Owners Corp., 211 AD2d 441, 87 NY2d 938; Connors v Boorstein, 4 NY2d 172; Machado v Triad III Assoc., 274 AD2d 558; Rivers v Sauter, 26 NY2d 260; Esposito v New York City Indus. Dev. Agency, 1 NY3d 526; Kirk v Outokumpu Am. Brass, Inc., 33 AD3d 1136; Adair v Bestek Light. & Staging Corp., 298 AD2d 153; Acosta v Banco Popular, 308 AD2d 48.) II. The Appellate Division, First Department properly dismissed plaintiff’s complaint because plaintiff failed to establish that his accident was proximately caused by any violation of Labor Law § 240 (1). (Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Negron v City of New York, 22 AD3d 546; Sprague v Peckham Materials Corp., 240 AD2d 392; Laverne v Incorporated Vil. of Laurel Hollow, 18 NY2d 635; Allende v New York City Health & Hosps. Corp., 90 NY2d 333; Estate of Canale v Binghamton Amusement Co., 37 NY2d 875; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Brooks v City of New York, 212 AD2d 435.)
   OPINION OF THE COURT

Read, J.

On March 5, 1999, Laurence Broggy (plaintiff), who was employed by International Service System, Inc. (ISS), reported to work at 75 Rockefeller Plaza, a part of the Rockefeller Center complex in New York City. ISS (subsequently renamed One-Source Facility Services, Inc.) is in the business of providing cleaning and maintenance services to commercial building owners and managers, and plaintiffs supervisor had instructed him to wash the inside of 75 Rockefeller Plaza’s eighth-floor windows. Plaintiff described himself as a “journeyman window washer” for ISS, because he would “go from building to building where . . . needed at a given time,” as opposed to a “steady building employee,” assigned by ISS to “work[ ] in a particular” structure.

When plaintiff arrived at work, he brought along his bucket and window washing “tools” — a wand, a squeegee and a bottle of soap. He met two other ISS employees at the building’s front desk, and a security guard escorted them to the eighth floor. Plaintiff first went to the wash closet to fill his bucket with water. He and his two coworkers, who were equipped with safety belts for exterior window washing, then began to clean the windows in the eighth-floor offices. These windows were vertically sliding sash windows, roughly four feet wide and six feet tall. The base of each window was three or four feet above the floor, and the top extended to within roughly six inches of the ceiling. Thus the top of each window was 9 or 10 feet above the floor.

As plaintiff described his window washing technique, he first applied soap and water to a window’s interior surface, using the wand. Then he squeegeed off the soapy water and “wipe[d] the bottom of the window with a towel.” Plaintiff cleaned the inside of “about eight” windows altogether in at least three different offices without incident. He did not testify that he required or used a ladder or platform to reach the top of these windows with his wand and squeegee.

Plaintiff and his coworkers eventually arrived at room 810, where three of the windows were aligned “in a row” on the wall opposite the doorway. As plaintiff entered the room, the window farthest to his left was about five or six feet from a corner of the office, and about four or five feet separated this window from the one to its immediate right. The third window was “well off’ to the right of this pair of windows.

There were two mahogany desks in room 810. One of them was pushed with its back flush against the leftmost window, extending laterally “[a] couple of feet” beyond the window towards the corner of the office. The top of this desk was about three feet deep and 10 feet wide. A gallery — a one-inch-thick and four-inch-high protecting edge, raised above the desktop’s surface — bordered its back, while the desktop itself was level with the window’s sill. The three men considered moving this desk, but after “put[ting] [their] hands on” it, concluded that “ ‘[w]e can’t move this. It’s too big.’ ” When asked if the desktop was empty or whether there were papers, a computer or anything else on it, plaintiff testified that he thought that there were “papers that were moved aside.”

Protected by their safety belts, plaintiffs coworkers began to clean the exterior surfaces of room 810’s windows, gaining access by stepping through a window onto an outside ledge. Meanwhile, plaintiff clambered up on top of the desk and began to clean the interior surface of the leftmost window, starting at the upper lefthand corner. Plaintiff was aware of the gallery because when he “climbed up on the desk to wash the window, [he] stepped over it to get closer to the window.” After plaintiff completed cleaning the glass in the window’s top sash, he noticed that one of his coworkers was signaling that he wanted back into the office from the outside. Standing with his left foot on the windowsill and his right foot on the desktop, plaintiff lifted the bottom sash and moved his hands away, expecting the window to remain open. Instead, the bottom sash suddenly “slammed down,” and plaintiff “tried to get [his] left foot out of the way” by moving it from the windowsill “[t]owards the desk.” When he did this, his left instep “[came] into contact with” the gallery, causing him to lose his balance, fall backwards and hit his back first on the desktop and then the floor.

On February 15, 2002, plaintiff and his wife sued various parties identified as landlords, lessors, lessees or managers of 75 Rockefeller Plaza, alleging violations of Labor Law §§ 200, 202, 240 (1) and § 241 (6). Plaintiffs subsequently moved for partial summary judgment on liability under Labor Law § 240 (1) because plaintiff was “injured when he fell from the window sill which was being used as an elevated platform or scaffold from which to perform commercial window cleaning.” Plaintiffs faulted defendants for failing to provide plaintiff with the safety devices necessary “to overcome the elevation differential of approximately four feet between the floor and the window so as to perform his task safely.” Defendants opposed the motion, arguing that there were questions of fact as to whether cleaning the interior of a commercial building’s windows was covered by Labor Law § 240 (1), and whether plaintiff’s accident was proximately caused by the absence of any safety device listed in the statute. Defendants also moved to dismiss plaintiffs’ remaining Labor Law claims. Supreme Court granted plaintiffs’ motion for partial summary judgment and defendants’ motion to dismiss, and defendants appealed.

The Appellate Division subsequently reversed Supreme Court, denied plaintiffs’ motion for partial summary judgment on liability and, upon searching the record, granted summary judgment to defendants dismissing plaintiffs’ Labor Law § 240 (1) claim and the complaint. The Appellate Division took the position that section 240 (l)’s protections are limited to cleaning that is related to building construction, demolition and repair work; or, if not carried out at a construction site, is incidental to activities making a significant physical change to the premises, citing our decisions in Joblon v Solow (91 NY2d 457 [1998]) and Panek v County of Albany (99 NY2d 452 [2003]). As an alternative ground, the Appellate Division concluded that plaintiffs had

“failed to establish the need for any safety device affording protection from the effects of gravity in connection with the interior window cleaning at issue. [They] do not allege that any additional device, such as a ladder, was needed to permit the interior surfaces of the windows to be safely cleaned; nor do they allege that cleaning could not have been successfully performed from the floor level using the wand and squeegee supplied. (The record is devoid of evidence concerning the length of the handles on these tools.) Thus, there is no evidence from which this Court could conclude that the injured plaintiff was exposed to an elevation-related risk protected by the statute” (30 AD3d 204, 206-207 [1st Dept 2006] [citations omitted]).

We granted plaintiffs permission to appeal, and now affirm on the basis of the Appellate Division’s alternative rationale.

Labor Law § 240 (1) provides that

“[a]ll contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed” (emphasis added).

Thus, “cleaning” is expressly afforded protection under section 240 (1) whether or not incidental to any other enumerated activity (see Smith v Shell Oil Co., 85 NY2d 1000, 1002 [1995] [changing a lightbulb not protected under Labor Law § 240 (1) because it was “maintenance of a sort different from ‘painting, cleaning or pointing,’ the only types of maintenance provided for in the statute” (emphasis added)]). As a result, in Brown v Christopher St. Owners Corp. (87 NY2d 938, 939 [1996]), we did not preclude liability on the ground that the exterior window cleaning was not part of a construction, demolition, or repair project. Rather, we concluded that “routine, household window washing” was “not the kind of undertaking for which the Legislature sought to impose liability under Labor Law § 240” (emphasis added; see also Connors v Boorstein, 4 NY2d 172 [1958] [excluding cleaning of a private residence’s windows from ambit of section 240 (1)]).

Further, our decisions in Joblon and Panek do not suggest that cleaning at a nonconstruction site falls outside the scope of section 240 (1) unless connected with altering. These cases dealt with the meaning of the statutory term “altering,” not “cleaning.” “Altering” and “cleaning” are discrete categories of activity protected under section 240 (1). Notably, in Joblon, we rejected the defendants’ argument that only altering performed as part of a building construction job was covered by section 240 (1) (see 91 NY2d at 463-464).

In Bauer v Female Academy of Sacred Heart (97 NY2d 445 [2002]), we allowed a section 240 (1) claim to go forward where the plaintiff fell while cleaning the exterior of a third-story window at a school. We see no reason to limit Bauer to its facts— exterior window washing of a nondomestic character — as defendants urge. While interior window washing may not routinely entail the elevation-related risks that exterior window washing almost invariably poses, assigning liability under section 240 (1) on this basis would create an arbitrary dividing line unfaithful to legislative intent. The crucial consideration under section 240 (1) is not whether the cleaning is taking place as part of a construction, demolition or repair project, or is incidental to another activity protected under section 240 (1); or whether a window’s exterior or interior is being cleaned. Rather, liability turns on whether a particular window washing task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against.

The burden of showing that an elevation-related risk exists, and that the owner or contractor did not provide adequate safety devices falls upon the plaintiff. Here, plaintiffs did not fulfill this burden. Plaintiff did not testify how high he could reach with his wand and squeegee while standing on the floor. He asserted that he had to stand on the desk, but provided no evidence to show that this was because he was required to work at an elevation to clean the interior of the windows. The desk may have been in plaintiffs way, or it may have been easier for him to reach the top of the windows while standing on the desk, or it may have been quicker for him to climb on the desk than to seek further assistance to move it. To recover under section 240 (1), however, plaintiff must establish that he stood on the desk because he was obliged to work at an elevation to wash the interior of the windows. Moreover, summary judgment in favor of defendants is proper because the evidence in this record demonstrates as a matter of law that plaintiff did not here need protection from the effects of gravity. Prior to his accident, plaintiff had cleaned the interior of eight other windows of exactly the same height as those in room 810, and the record does not show that he needed a ladder or other protective device. The only “tools” that he testified to having used were a wand, a squeegee and a bottle of soap.

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

Chief Judge Kaye and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.

Order affirmed, with costs.