author: Abdus-Salaam, J.

text:
    [43 NE3d 745, 22 NYS3d 388]
    In the Matter of Sierra Club et al., Appellants, v Village of Painted Post et al., Respondents.
    Argued October 13, 2015;
    decided November 19, 2015

      POINTS OF COUNSEL

      Lippes & Lippes, Buffalo (Richard J. Lippes of counsel), and. Rachel Treichler, Hammondsport, for appellants.
    I. Petitioner John Marvin has standing. (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Matter of McCartney v Dormitory Auth. of State of N.Y., 5 AD3d 1090; Matter of Save Our Main St. Bldgs, v Greene County Legislature, 293 AD2d 907, 98 NY2d 609; Matter of Buerger v Town of Grafton, 235 AD2d 984; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 213 AD2d 484; Matter of Industrial Liaison Comm. of Niagara Falls Area Chamber of Commerce v Williams, 131 AD2d 205, 72 NY2d 137; Matter of Dairylea Coop, v Walkley, 38 NY2d 6; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406; Sierra Club v Morton, 405 US 727.) II. There are merits issues presented by this case. (Matter of City of Buffalo v New York State Dept. of Envtl. Conservation, 184 Misc 2d 243; Matter of Town of Henrietta v Department of Envtl. Conservation of State of N.Y., 76 AD2d 215; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222; Matter of Rye Town/King Civic Assn. v Town of Rye, 82 AD2d 474; Matter of Schenectady Chems. v Flacke, 83 AD2d 460; Matter of Coalition for Future of Stony Brook Vil. v Reilly, 299 AD2d 481; Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41; Akpan v Koch, 75 NY2d 561; Cross Westchester Dev. Corp. v Town Bd. of Town

      of Greenburgh, 141 AD2d 796; Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508.)

      Harris Beach PLLC, Pittsford (Joseph D. Picciotti, John A. Mancuso and A. Vincent Buzard of counsel), for respondents.
    I. Petitioner John Marvin’s generalized complaint of train noise is insufficient to establish standing. (Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 NY3d 1; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297; Matter of Oates v Village of Watkins Glen, 290 AD2d 758; Matter of Save Our Main St. Bldgs, v Greene County Legislature, 293 AD2d 907; Matter of Gallaban v Planning Bd. of City of Ithaca, 307 AD2d 684; Matter of Finger Lakes Zero Waste Coalition, Inc. v Martens, 95 AD3d 1420; Matter of Har Enters, v Town of Brookhaven, 74 NY2d 524; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406.) II. The Basin Commission reviewed and approved the water withdrawals and the compact preempted the Village of Painted Post from undertaking an additional State Environmental Quality Review Act review of the withdrawals. (Virginia v Maryland, 540 US 56; American Sugar Ref. Co. of N.Y. v Waterfront Commn. of N.Y. Harbor, 55 NY2d 11; People ex rel. Hal D. v Nine Mile Canal Co., 828 F Supp 823; Alcorn v Wolfe, 827 F Supp 47; Balbuena v IDR Realty LLC, 6 NY3d 338; New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645; Cipollone v Liggett Group, Inc., 505 US 504; Ray v Atlantic Richfield Co., 435 US 151; Mitskovski v Buffalo & Fort Erie Pub. Bridge Auth., 689 F Supp 2d 483; Seattle Master Bldrs. Assn. v Pacific Northwest Elec. Power & Conservation Planning Council, 786 F2d 1359.) III. This proceeding should be dismissed as moot and barred by the doctrine of laches. (Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d 727; Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165; Matter of Weeks Woodlands Assn., Inc. v Dormitory Auth. of the State of N.Y., 95 AD3d 747; Matter of Friends of Pine Bush v Planning Bd. of City of Albany, 86 AD2d 246; Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839; Matter of Save The Pine Bush v New York State Dept. of Envtl. Conservation, 289 AD2d 636; Matter of Save the Pine Bush v City Engr. of City of Albany, 220 AD2d 871; Matter of Caprari v Town of Colesville, 199 AD2d 705.) IV. The Village of Painted Post completed the necessary State Environmental Quality Review Act review for the transloading facility and no additional review was required for the surplus water agreement. (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Akpan v Koch, 75 NY2d 561; Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306; Matter of Spitzer v Farrell, 100 NY2d 186; Borough of Morrisville v Delaware Riv. Basin Commn., 399 F Supp 469; White v Westage Dev. Group, 191 AD2d 687, 82 NY2d 706; Matter of Niagara Mohawk Power Corp. v Public Serv. Commn. of State of N.Y., 137 Misc 2d 235, 138 AD2d 63, 73 NY2d 702; Matter of Daimler Chrysler Corp. v Spitzer, 7 NY3d 653; Weingarten v Board of Trustees of N.Y. City Teachers’ Retirement Sys., 98 NY2d 575.)

      Harter Secrest & Emery LLP, Rochester (John P. Bringewatt, Leslie M. Mauro and Jeffrey A. Wadsworth of counsel), for Railroads of New York, amicus curiae.
    I. The Interstate Commerce Commission Termination Act of 1995 preempts any requirement under the State Environmental Quality Review Act that a municipality evaluate potential noise impacts resulting from a railroad transloading facility’s construction and operation pursuant to a lease agreement between the municipality and railroad. (CSX Transp., Inc. v Georgia Pub. Serv. Commn., 944 F Supp 1573; City of Auburn v United States Govt., 154 F3d 1025; Green Mtn. R.R. Corp. v Vermont, 404 F3d 638; Rushing v Kansas City S. Ry. Co., 194 F Supp 2d 493; Guckenberg v Wisconsin Cent. Ltd., 178 F Supp 2d 954; Matter of Power Auth. of State of N.Y. v Williams, 60 NY2d 315; Matter of Erie Blvd. Hydropower, L.P. v Stuyvesant Falls Hydro Corp., 30 AD3d 641; Fourth Branch Assoc. v Department of Envtl. Conservation, 146 Misc 2d 334; Norfolk S. Ry. Co. v City of Alexandria, 608 F3d 150.) II. Petitioners lack standing because the Interstate Commerce Commission Termination Act of 1995 preempts state or local regulation of train noise, thereby eliminating train noise from the “zone of interests” protected by the State Environmental Quality Review Act. (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Matter of Brighton Residents Against Violence to Children v MW Props., 304 AD2d 53; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297.)

      Susan J. Kraham, Columbia Environmental Law Clinic, New York City, and Daniel Raichel, Natural Resources Defense Counsel, New York City, for Gas Free Seneca and others, amici curiae.
    I. Citizen participation and review of government actions are fundamental to the operation of the State Environmental Quality Review Act. (Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508; Matter of WEOK Broadcasting Corp. v Planning Bd. of Town of Lloyd, 79 NY2d 373; Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761.) II. Requiring citizens to demonstrate a special harm to establish standing conflicts with the purpose and structure of the State Environmental Quality Review Act. (Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 NY3d 1; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297; Matter of Long Is. Pine Barrens Socy. v Town Bd. of Town of E. Hampton, 293 AD2d 616; Matter of Buerger v Town of Grafton, 235 AD2d 984; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 213 AD2d 484; Matter of Schulz v Warren County Bd. of Supervisors, 206 AD2d 672; Matter of Har Enters, v Town of Brookhaven, 74 NY2d 524.) III. The special harm rule is not necessary to discourage or dispose of meritless State Environmental Quality Review Act litigation. (Society of Plastics Indus. v County of Suffolk, 11 NY2d 761; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297; Village of Euclid v Ambler Realty Co., 272 US 365; Udell v Haas, 21 NY2d 463; Matter of Leone v Brewer, 259 NY 386; Whitridge v Park, 100 Misc 367, 179 App Div 884; Rice v Van Vranken, 132 Misc 82.) IV. New York stands alone in imposing a special harm rule in the context of environmental review. (Ocean Advocates v United States Army Corps of Engrs., 402 F3d 846; Sierra Club v Morton, 405 US 727; Massachusetts v EPA, 549 US 497; United States v Students Challenging Regulatory Agency Procedures [SCRAP], 412 US 669; Federal Election Comm’n v Akins, 524 US 11; Arcia v Florida Secretary of State, 772 F3d 1335; Tourgeman v Collins Fin. Servs., Inc., 755 F3d 1109; Southern Utah Wilderness Alliance v Palma, 707 F3d 1143; Board of Educ. of Ottawa Twp. High School Dist. 140 v Spellings, 517 F3d 922; New World Radio, Inc. v Federal Communications Commn., 294 F3d 164.)

      Wade Beltramo, General Counsel, New York State Conference of Mayors & Municipal Officials, Albany, for New York State Conference of Mayors & Municipal Officials, amicus curiae.
    I. The nature of local government actions and determinations in general, and land use matters in particular, demands that the principle of standing be clearly articulated and narrowly defined to avoid overburdening local governments and the courts, while at the same protecting aggrieved parties. II. Because duplicative State Environmental Quality Review Act (SEQRA) reviews must be avoided, the trial court’s decision to impose an additional, redundant SEQRA review must not be reinstated. (Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508; Cross Westchester Dev. Corp. v Town Bd. of Town of Greenburgh, 141 AD2d 796; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400.)
   OPINION OF THE COURT

Abdus-Salaam, J.

In Society of Plastics Indus. v County of Suffolk (77 NY2d 761 [1991]), this Court examined the law of standing, and set forth a framework for deciding whether parties have standing to challenge governmental action in land use matters generally, and under the State Environmental Quality Review Act (ECL art 8 [SEQRA]), specifically. We held that “the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large” (77 NY2d at 774). This appeal gives us the opportunity to elucidate and further address the “special injury” requirement of standing (id. at 778).

L

The Village of Painted Post, in Steuben County, New York, is located at the confluence of the Cohocton, Tioga and Chemung Rivers. Underlying the confluence of these rivers is the Corning aquifer, which is the principal drinking water supply of several municipalities, including the Village. In February 2012, the Board of Trustees of the Village adopted a resolution to enter into a surplus water sale agreement with respondent SWEPI, LP, a subsidiary of Shell Oil Co., which operates gas wells in Tioga County, Pennsylvania. The surplus water sale agreement provided for the sale to SWEPI, LP of 314,000,000 gallons of water in increments of up to one million gallons per day from the Village water system with an option to increase the amount by an additional 500,000 gallons per day.

The Village determined that, pursuant to 6 NYCRR 617.5 (c) (25), the sale of its water was a Type II action exempt from review under SEQRA. Another resolution approved a lease agreement with respondent Wellsboro & Corning Railroad (Wellsboro) for the construction of a water transloading facility on 11.8 acres of land, previously used for industrial purposes, to be used as a filling station upon which the water would be withdrawn, loaded, and transported via rail line to Wellsboro, Pennsylvania. The Village determined that the lease agreement was a Type I action under SEQRA and issued a negative declaration, concluding that the lease will not result in any potentially significant adverse impact on the environment based on a review of a full environmental assessment form, a report prepared by engineering consultants to the Village, the site plan prepared for the railroad, and the 2005 deed to the site.

Construction of the water loading facility began in April 2012, and in June 2012, petitioners commenced this CPLR article 78 proceeding against the Village; Painted Post Development, LLC; SWEPI, LP; and Wellsboro seeking an order (1) annulling the Village’s Type II determination for the water sale agreement; (2) annulling the Village’s negative declaration for the lease of the rail loading facility; (3) annulling the Village’s water sale agreement with SWEPI and the lease to Wellsboro; (4) requiring the Village to issue a positive declaration and complete an environmental impact statement for the totality of the plan rather than segmenting the water sale and the lease; (5) enjoining the Village from entering into the water sale and lease agreements until the Village complied with all federal and state laws; and (6) preliminarily enjoining any water shipments or work at the rail loading facility site until the Village complied with all federal and state laws. Petitioners included the not-for-profit organizations the Sierra Club, People for a Healthy Environment, Inc., and Coalition to Protect New York, as well as various individual residents of the Village.

As relevant here, petitioners asserted that the Village failed to comply with the strict procedural mandates of SEQRA, particularly that it (1) failed to consider significant adverse environmental impacts of the water withdrawals, (2) improperly claimed a Type II exemption for the water sale agreement, and (3) impermissibly segmented its review of the water sale agreement and the lease agreement. With respect to petitioner John Marvin (appellant here), the petition alleged that he is a longtime resident of the Village and resides “less than a block from the proposed rail loading facility, which is visible from his doorstep” and that he and his wife would be “adversely affected by the significant rail traffic and the increased noise and air contamination caused by the project.” Respondents answered and subsequently moved to dismiss the petition pursuant to CPLR 3211 (a) (3) and (7), asserting that petitioners lacked standing and failed to state a cause of action, and alternatively, moved for summary judgment pursuant to CPLR 3212. Petitioners opposed the motions, submitting, among other things, an affidavit of petitioner Marvin, who stated that when the water trains began running, he “heard train noises frequently, sometimes every night” and that “[t]he noise was so loud it woke [him] up and kept [him] awake repeatedly.” Marvin further stated that the “noise was much louder than the noise from other trains that run through the [Vlillage” and he was concerned that the “increased train noise will adversely impact [his] quality of life and home value.”

Supreme Court searched the record and, in pertinent part, (1) granted summary judgment to petitioners insofar as it annulled (a) the Village’s resolutions designating the surplus water agreement as a Type II action, (b) the negative declaration as to the lease agreement, and (c) the Village Board’s resolutions approving the surplus water agreement and the lease agreement; (2) granted petitioners an injunction enjoining further water withdrawals pursuant to the surplus water agreement pending the Village’s compliance with SEQRA; and (3) denied respondents’ motion to dismiss for lack of standing. With respect to the standing of the organizations and individual petitioners, the court determined that none of the individual petitioners claimed that they were members of those organizations, that the organizations alleged only generalized environmental injuries that the public at large would suffer and that such generalized claims were insufficient to confer standing.

With respect to the individual petitioners, excepting Marvin, the court determined that they too alleged only general harm (i.e., disrupted traffic patterns, noise levels, and water quality) “no different than that experienced by the general public.” However, regarding petitioner Marvin, the court noted that he could see the water loading facility from his front porch, and concluded that Marvin’s allegation of “train noise newly introduced into his neighborhood ... is different than the noise suffered by the public in general.” The court reasoned that although Marvin did not “distinguish this noise from that of the previous train noises associated with the existing rail line or from the former industrial use of the area,” nevertheless,

“Marvin’s undifferentiated complaint of train noise, however, may be considered in the context of an industrial and rail facility which fell into disuse for a considerable period of time prior to construction of the subject project, and thus his complaint of rail noise is availing to show harm distinct from that suffered by the general public.”

Because Marvin had standing, the court did not dismiss the proceeding brought by the other petitioners who did not have standing. On the merits of the petition, the court held that the Village’s Type II designation of the water sale agreement was arbitrary and capricious and that the Village had improperly segmented the SEQRA review of the lease from the water sale agreement.

The Appellate Division (115 AD3d 1310 [2014]), unanimously (1) reversed the judgment on the law, (2) granted the Village’s and SWEPI’s motion, and (3) dismissed the petition as against them on the ground that Marvin lacked standing. The Court agreed with petitioners that “noise falls within the zone of interests sought to be protected by SEQRA” (115 AD3d at 1312). However, emphasizing that “Marvin raised no complaints concerning noise from the transloading facility itself” (115 AD3d at 1312), the Court, citing Society of Plastics, reasoned that “[inasmuch as we are dealing with the noise of a train that moves throughout the entire Village, as opposed to the stationary noise of the transloading facility, we conclude that Marvin will not suffer noise impacts ‘different in kind or degree from the public at large’ ” (115 AD3d at 1312-1313). Having dismissed the petition for lack of standing, the Appellate Division did not reach the merits of the SEQRA challenge.

IL

We held in Society of Plastics that “[i]n land use matters . . . the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large” (77 NY2d at 774). Applying that test in Matter of Save the Pine Bush, Inc. v Common Council of City of Albany (13 NY3d 297 [2009]), this Court held that petitioners, who alleged “repeated, not rare or isolated use” of the Pine Bush recreation area, had demonstrated standing “by showing that the threatened harm of which petitioners complain will affect them differently from ‘the public at large’ ” (13 NY3d at 305).

The Appellate Division, in concluding that petitioner Marvin lacked standing, applied an overly restrictive analysis of the requirement to show harm “different from that of the public at large,” reasoning that because other Village residents also lived along the train line, Marvin did not suffer noise impacts different from his neighbors. We said in Society of Plastics that

“[t]he doctrine grew out of a recognition that, while directly impacting particular sites, governmental action affecting land use in another sense may aggrieve a much broader community. The location of a gas station may, for example, directly affect its immediate neighbors but indirectly affect traffic patterns, noise levels, air quality and aesthetics throughout a wide area” (77 NY2d at 774-775).

This example is distinctly different from the situation here where more than one resident is directly impacted by the noise created from increased train traffic. That more than one person may be harmed does not defeat standing, as we found in Save the Pine Bush where we held that the nine individual petitioners who alleged that they lived near the site of the proposed project and “use[d] the Pine Bush for recreation and to study and enjoy the unique habitat found there,” have standing (13 NY3d at 305; see generally United States v Students Challenging Regulatory Agency Procedures [SCRAP], 412 US 669, 687-688 [1973] [“(W)e have . . . made it clear that standing is not to be denied simply because many people suffer the same injury ... To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody”]). The harm that is alleged must be specific to the individuals who allege it, and must be “different in kind or degree from the public at large” (Society of Plastics at 778), but it need not be unique. Here, petitioner Marvin is not alleging an indirect, collateral effect from the increased train noise that will be experienced by the public at large, but rather a particularized harm that may also be inflicted upon others in the community who live near the tracks.

The number of people who are affected by the challenged action is not dispositive of standing. This Court recognized in Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation (23 NY3d 1 [2014]) that standing rules should not be “heavy-handed,” and declared that we are “reluctant to apply [standing] principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review” (23 NY3d at 6 [citation omitted]). Applying the Appellate Division’s reasoning, because there are multiple residents who are directly impacted, no resident of the Village would have standing to challenge the actions of the Village, notwithstanding that the train noise fell within the zone of interest of SEQRA. That result would effectively insulate the Village’s actions from any review and thereby run afoul of our pronouncement that the standing rule should not be so restrictive as to avoid judicial review.

Here, as in Save the Pine Bush, Marvin alleges injuries that are “real and different from the injury most members of the public face” (13 NY3d at 306). Thus, his allegation about train noise caused by the increased train traffic keeping him awake at night, even without any express differentiation between the train noise running along the tracks and the noise from the transloading facility, would be sufficient to confer standing.

Accordingly, the order should be reversed, with costs, and the matter remitted to the Appellate Division, for consideration of issues raised but not determined on the appeal to that Court.

Chief Judge Lippman and Judges Pigott, Rivera, Stein and Fahey concur.

Order reversed, with costs, and matter remitted to the Appellate Division, Fourth Department, for consideration of issues raised but not determined on the appeal to that Court.

      . 6 NYCRR 617.5 (c) (25) provides that actions for the "purchase or sale of furnishings, equipment or supplies, including surplus government property, other than the following: land, radioactive material, pesticides, herbicides, or other hazardous materials” are Type II actions that are not subject to review under SEQRA.

      . 6 NYCRR 617.4 sets forth a non-exhaustive list of Type I actions and provides that
      "the fact that an action or project has been listed as a Type I action carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an [environmental impact statement]. For all individual actions which are Type I or Unlisted, the determination of significance must be made by comparing the impacts which may be reasonably expected to result from the proposed action with the criteria listed in section 617.7(c) of this Part” (6 NYCRR 617.4 [a] [1]).

      . While the petition alleged that Marvin lives less than a block from the rail loading facility, he clarified in his affidavit that he lives one-half block from the railroad line that crosses his street, and a block and one half from the rail loading facility.

      . Although Marvin’s affidavit sets forth a generalized complaint of train noise, we see no reason to conclude, as did the Appellate Division, that he is only claiming noise from trains running on the tracks, and not from the trains in the loading facility. Given his proximity to the facility and his allegations, we may conclude that he was hearing noise from the facility, as well as the noise from the trains running along the tracks. Additionally, the verified petition references an engineer’s report issued prior to the construction of the facility that states that the loaded cars will be heavy, and that moving cars loaded with more than 96 tons of weight on and off sidings can be expected to result in significant noise from coupling and uncoupling cars, running the diesel engines required to move the railcars and squealing wheels. In sum, Marvin’s allegations, read in the context of the petition, sufficiently set forth harm caused not only by the noise of trains running along the tracks, but the trains in the loading facility.


source: Caselaw Access Project

license: Public Domain

text:
    [43 NE3d 757, 22 NYS3d 400]
    The People of the State of New York, Respondent, v Nugene Ambers, Appellant.
    Argued October 15, 2015;
    decided November 23, 2015

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Mark W. Vorkink of counsel), for appellant.
    I. Appellant was denied his due process right to a fair trial when the prosecutor, in summation, (a) falsely stated that the People’s medical expert found physical evidence corroborating the abuse allegations, and (b) insisted without record support that appellant abused the complainants while he was drunk. (People v Riback, 13 NY3d 416; Donnelly v DeChristoforo, 416 US 637; People v Ashwal, 39 NY2d 105; People v Fisher, 18 NY3d 964; People v Stanard, 32 NY2d 143; People v Calabria, 94 NY2d 519; Miller v Pate, 386 US 1; People v Prado, 4 NY3d 725; People v Finch, 23 NY3d 408.) II. Appellant was denied the effective assistance of counsel when his attorney (a) failed to object to the prosecutor calling appellant a “two-time felon,” “drunk,” and “predator” who had “stole [n]” the complainants’ “innocence” and “scarred [them] for life”; saying the complainants “deserve[d] an Oscar” if they lied and that there was “no evidence” why they would lie; and misrepresenting the People’s child sex abuse expert’s testimony; and (b) failed to seek dismissal of two clearly time-barred counts. (People v Turner, 5 NY3d 476; Strickland v Washington, 466 US 668; People v Fisher, 18 NY3d 964; People v Baldi, 54 NY2d 137; Hawthorne v Schneiderman, 695 F3d 192; People v Benevento, 91 NY2d 708; Murray v Carrier, 477 US 478; People v Evans, 16 NY3d 571; People v Hobot, 84 NY2d 1021; People v Oathout, 21 NY3d 127.)

      Richard A. Brown, District Attorney, Kew Gardens (Anastasia Spanakos, Ushir Pandit, Robert J. Masters, John M. Castellano and Nicoletta J. Caferri of counsel), for respondent.
    I. The Appellate Division correctly found that defendant received the effective assistance of trial counsel. Counsel’s strategic decision not to seek dismissal of misdemeanor time-barred charges was legitimate. (People v Turner, 5 NY3d 476; Strickland v Washington, 466 US 668; People v Oathout, 21 NY3d 127; People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Baker, 14 NY3d 266; People v Satterfield, 66 NY2d 796; People v Borrell, 12 NY3d 365; People v Henry, 95 NY2d 563; People v Flores, 84 NY2d 184.) II. The prosecutor’s summation comments were responsive to defendant’s summation, and any possible prejudice was cured by the court’s instructions. Moreover, counsel adequately protected defendant’s rights during the summation through his more than 30 objections and repeated mistrial motions. (People v Ashwal, 39 NY2d 105; Williams v Brooklyn El. R.R. Co., 126 NY 96; People v Halm, 81 NY2d 819; People v Bailey, 58 NY2d 272; People v Galloway, 54 NY2d 396; People v Marks, 6 NY2d 67; People v Anthony, 24 NY2d 696; People v Draksin, 145 AD2d 500; People v Trinidad, 59 NY2d 820; People v Arce, 42 NY2d 179.)
   OPINION OF THE COURT

Abdus-Salaam, J.

On this appeal, we must decide whether defendant’s trial counsel was ineffective for (1) failing to seek the dismissal of time-barred charges against defendant and (2) failing to object to certain statements by the prosecutor during her summation. For the following reasons, we hold that defendant’s trial counsel was not ineffective and therefore the Appellate Division order should be affirmed.

I

Defendant Nugene Ambers was charged, in two felony complaints, with having committed various sex offenses against two children. Specifically, as to the older child, defendant was charged with first- and second-degree course of sexual conduct against a child, second-degree rape, and endangering the welfare of a child. As to the younger child, he was charged with second-degree course of sexual conduct against a child and endangering the welfare of a child. During trial, both children testified, detailing their accounts of the sexual abuse they endured from defendant. The People called Dr. Jamie HoffmanRosenfeld, a child abuse pediatrician, who is an expert in the fields of pediatric medicine and child sexual abuse. She testified that she examined both children and in her medical opinion both girls “presented with a history of sexual abuse and [their] physical exam finding [s] . . . neither proved or disproved that history.” Defendant testified on his own behalf. He denied having any sexual contact with the children. Defendant admitted that he became an alcoholic after he returned from a prior prison sentence, and drank “six or seven 40 ounce [ ]” bottles “of beer right after work,” and had “many blackouts.”

During the People’s summation, the prosecutor stated that Dr. Hóffman-Rosenfeld concluded “that these children were sexually abused.” Defense counsel made an objection, the court sustained the objection and later gave a curative instruction to the jury stating “that Dr. Hoffman-Rosenfeld testified that she did not find any physical evidence to support the claim of sexual abuse in either [child]. She indicated that the lack of such physical evidence neither proves nor disproves that sexual abuse occurred.” The prosecutor also made a series of statements about defendant’s alcoholism and stated that defendant abused the children because he was drunk. A number of those statements were made without objection. Defense counsel, however, did make an objection to one such comment, and the court issued a curative instruction stating that “neither [child] testified that the defendant was under the influence of alcohol at the time of any of the alleged acts of sexual abuse in this case.” During the People’s summation, defendant twice moved for a mistrial; both of those requests were denied.

Defendant was convicted of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, rape in the second degree, and two counts of endangering the welfare of a child. On appeal, defendant argued that his trial counsel was ineffective. Specifically, defendant asserted that his trial counsel’s failure to seek the dismissal of the endangering the welfare of a child counts against him, based upon the expiration of the statute of limitations, rendered his counsel ineffective. Additionally, defendant argued that certain comments made by the prosecutor during summation misrepresented testimony, utilized rhetorical flourishes to elicit sympathy for the victims and prejudiced the jury against him.

The Appellate Division affirmed, holding that defendant failed to preserve his argument regarding the prejudicial nature of certain statements made by the prosecutor and that he was not deprived of effective assistance of counsel, stating that defendant “failed to demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcoming” (see People v Ambers, 115 AD3d 671, 672 [2d Dept 2014] [internal quotation marks omitted]). A Judge of this Court granted defendant’s application for leave to appeal (see People v Ambers, 23 NY3d 1059 [2014]).

II

A defendant has the right to receive reasonably effective assistance of counsel under the United States Constitution (see Strickland v Washington, 466 US 668, 687-688 [1984]). Under New York law, the constitutional requirement of effective assistance of counsel is met when “ ‘the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Baldi, 54 NY2d 137, 147 [1981]). “The core of the inquiry is whether defendant received meaningful representation” (Benevento, 91 NY2d at 712 [internal quotation marks omitted]). To demonstrate ineffective assistance of counsel, the defendant must show that he or she did not receive a fair trial because counsel’s conduct was “egregious and prejudicial” (People v Oathout, 21 NY3d 127, 131 [2013]). Additionally, the defendant must overcome the strong presumption that defense counsel rendered effective assistance (see People v Barboni, 21 NY3d 393, 406 [2013]). Therefore, defendant must “demonstrate the absence of strategic or other legitimate explanations for counsel’s failure” (id. at 405-406). “[I]n ineffective assistance cases, counsel’s subjective reasons for a decision are immaterial, so long as ‘viewed objectively, the transcript and the submissions reveal the existence of a trial strategy that might well have been pursued by a reasonably competent attorney’ ” (People v Evans, 16 NY3d 571, 575-576 [2011] [brackets and emphases omitted], quoting People v Satterfield, 66 NY2d 796, 799 [1985]).

Relying on People v Turner (5 NY3d 476, 480-481 [2005]), defendant argues that there was no strategic reason to support his trial counsel’s failure to seek dismissal of undisputably time-barred endangering the welfare of a child charges, and thus he was denied his right to effective assistance of counsel. The People assert that defense counsel had a strategic reason for not seeking dismissal of those charges, and otherwise provided overall meaningful representation.

In People v Turner (5 NY3d 476 [2005]), we held that counsel was ineffective for the single error of failing to raise a statute of limitations defense. In that case, the defendant was indicted for murder in the second degree 16 years after the crime occurred. During the trial, the prosecutor requested that the jury be instructed on the lesser included offense of first-degree manslaughter, which, unlike second-degree murder, carries a five-year statute of limitations (see CPL 30.10 [2] [b]). Although defense counsel objected to the lesser included offense, stating that the defendant “does not want to give a jury the chance to compromise,” counsel did not argue that first-degree manslaughter was time-barred (id. at 478). The defendant was acquitted of murder but convicted of manslaughter. This Court held that the defendant’s appellate counsel was ineffective for failing to assert that the defendant’s trial counsel was ineffective for not seeking dismissal of the time-barred first-degree manslaughter charge. In particular, the Court stated that “the failure to raise a defense as clear-cut and completely dispositive as a statute of limitations ... in the absence of a reasonable explanation for it, is hard to reconcile with a defendant’s constitutional right to the effective assistance of counsel” (id. at 481). There was no evident explanation in Turner where defense counsel had opposed having manslaughter charged to the jury, but did not assert the statute of limitations as a basis for such opposition. In that context, the Court determined that the issue of “whether trial counsel was clearly ineffective” turns on “how strong defendant’s statute of limitations defense was” and concluded that in the defendant’s case, because the statute of limitations argument was a clear winner, “trial counsel could not reasonably have thought that the defense was not worth raising” (id.).

Turner did not create a blanket rule that failure to raise an available statute of limitations defense will always render counsel ineffective, but left open the possibility that counsel may have “a reasonable explanation for” the failure to seek dismissal of a time-barred charge that would not render his or her representation ineffective (id. at 481). One such reasonable explanation, where the time-barred charge is a lesser crime than the remaining counts in the accusatory instrument, might be a strategy to allow the jury to reach a compromise verdict.

Thus, in People v Evans (16 NY3d 571 [2011]), this Court examined whether it was a reasonable strategy for a defense attorney not to seek dismissal of a time-barred lesser charge in order to provide the jury an opportunity to render a compromise verdict where there was a multiple-count indictment. The Court concluded that trial counsel had a legitimate strategy for not seeking dismissal of the manslaughter count, because

“at the time of trial, [the] defendant was facing second-degree murder charges with an admission that he had fired the shot that caused the cab driver’s death. Therefore, had the manslaughter count been dismissed prior to verdict, the trier of fact would have been left with murder as the only choice if [the] defendant was to be found criminally responsible for the homicide. So allowing the trial court to consider the manslaughter count would be a legitimate strategy” (id. at 576).

While seeking dismissal of the endangering the welfare of a child counts (class A misdemeanors) based upon the statute of limitations would have eliminated those charges, defendant still would have faced the remaining charges of second-degree rape as well as first- and second-degree course of sexual conduct against a child as to the older child and second-degree course of sexual conduct against a child as to the younger child — class B and D felonies (see Penal Law §§ 130.75, 130.80, 130.30). Thus, defendant’s counsel here, like the defense counsel in Evans, may have strategically decided to allow the lesser charges of endangering the welfare of a child to remain in order to allow the jury to convict defendant of that crime rather than the greater charges of rape and course of sexual conduct against a child. Given that a conviction of some kind after trial was not unlikely in the face of the children’s account of events, counsel had a sound basis to give the jury an opportunity to convict defendant of a misdemeanor rather than a felony. There was no indication that counsel did not want a lesser offense charged to the jury as was the case in Turner. Given the presence of a plausible and reasonable strategy that could explain defense counsel’s actions, we cannot say on this record that defendant’s trial counsel was ineffective for failing to seek dismissal of the time-barred charges. Defendant, therefore, failed to meet his burden of demonstrating the absence of a strategy (see Barboni, 21 NY3d at 405-406).

Moreover, defendant’s trial counsel was not ineffective for failing to object to certain comments made during the prosecutor’s summation. Although many of the prosecutor’s statements were objectionable, defense counsel’s failure to object to certain comments did not render him ineffective. During the prosecutor’s summation, defense counsel lodged 30 objections, 15 of which were sustained. Contrary to defendant’s contention, the curative instructions the court issued ameliorated any potential prejudice to him (see People v Tosca, 98 NY2d 660, 661 [2002]; People v Galloway, 54 NY2d 396, 399 [1981] [trial judge’s prompt response halted any prejudice]; People v Arce, 42 NY2d 179, 190-191 [1977] [same]). Overall, defendant’s counsel provided meaningful representation and zealously advocated for defendant by vigorously cross-examining the prosecution witnesses, seeking to discredit the People’s theory of the case, twice moving for a mistrial, and objecting to numerous statements made during the People’s summation. His failure to make additional objections did not render him constitutionally ineffective.

Accordingly, the Appellate Division order should be affirmed.

Chief Judge Lippman and Judges Pigott, Rivera, Stein and Fahey concur.

Order affirmed.

       The statute of limitations as to the class A misdemeanor of endangering the welfare of a child is two years (see Penal Law § 260.10 [1]; CPL 30.10 [2] [c]). The complaint as to the older child states that the acts supporting the endangering the welfare of a child charge occurred between September 1, 2003 and August 30, 2006. Thus, the statute of limitations expired on August 30, 2008. The second complaint as to the younger child states that the acts occurred between April 7, 1999 and April 6, 2007. The statute of limitations as to that charge expired on April 6, 2009. Both complaints were filed on May 20, 2010. Accordingly, the endangering the welfare of a child charges were certainly time-barred.


author: Chief Judge Lippman. Abdus-Salaam, J.

text:
    [43 NE3d 750, 22 NYS3d 393]
    The People of the State of New York, Respondent, v Davon Harris, Appellant.
    Argued October 15, 2015;
    decided November 23, 2015

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Alexis A. Ascher of counsel), for appellant.
    I. The trial court deprived appellant of his due process rights to a fair trial and an impartial jury when, without conducting its own inquiry, it denied defense counsel’s for-cause challenge of a juror who showed an inability to accept that a witness could purposely lie under oath. (People v Branch, 46 NY2d 645; People v Arnold, 96 NY2d 358; People v Bludson, 97 NY2d 644; People v Culhane, 33 NY2d 90; People v Santiago, 13 AD3d 81; People v Johnson, 17 NY3d 752; People v Johnson, 94 NY2d 600; People v Chambers, 97 NY2d 417; People v Casey, 96 NY 115.) II. Appellant was denied the effective assistance of counsel when, without any strategic reason, counsel failed to make the “clear-cut,” “dispositive,” and “winning argument” that the misdemeanor charge of petit larceny should be dismissed as time-barred. (People v Turner, 5 NY3d 476; Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; People v Caban, 5 NY3d 143; People v Benevento, 91 NY2d 708; People v Townsley, 20 NY3d 294; People v Satterfield, 66 NY2d 796; People v Thompson, 21 NY3d 555; People v Feliciano, 17 NY3d 14; People v Jackson, 18 NY3d 738.)

      Richard A. Brown, District Attorney, Kew Gardens, (Christine DiSalvo, Daniel Bresnahan and John M. Castellano of counsel), for respondent.
    I. The Appellate Division properly affirmed the trial court’s denial of defendant’s for-cause challenge of a prospective juror who had not expressed a state of mind that would likely preclude him from rendering an impartial verdict. (People v Person, 8 NY3d 973; People v Gray, 86 NY2d 10; People v Fleming, 70 NY2d 947; People v LaValle, 3 NY3d 88; People v Burris, 96 NY2d 884; People v Laverpool, 267 AD2d 93; People v Hicks, 6 NY3d 737; People v Torres, 80 NY2d 944; People v Grimm, 107 AD3d 1040; People v Moon, 256 AD2d 24.) II. The Appellate Division correctly found that defendant received the effective assistance of trial counsel. (People v Turner, 5 NY3d 476; Strickland v Washington, 466 US 668; People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Baker, 14 NY3d 266; People v Satterfield, 66 NY2d 796; People v Borrell, 12 NY3d 365; People v Henry, 95 NY2d 563; People v Flores, 84 NY2d 184; People v McGee, 20 NY3d 513.)
   OPINION OF THE COURT

Chief Judge Lippman.

On the night of August 4, 2002, the complainant awoke in the dwelling where she was passing the night, to the sight of a man standing over her. She screamed and the man fled, but, as it turned out, not without leaving markers of his intrusion. In December 2010, DNA recovered from the complainant’s pajama shirt directly after the 2002 incident was matched to defendant’s DNA profile, and that match was confirmed using a buccal swab obtained from defendant in 2011. On the strength of those findings and the complainant’s report that a pair of earrings was missing from the apartment in the near aftermath of the 2002 intrusion, defendant was in February 2011 indicted for burglary in the second degree (Penal Law § 140.25) and petit larceny (Penal Law § 155.25). The former charge was timely interposed, but the latter was not, the applicable statutory period having run some IV2 years before the filing of the accusatory instrument. This last circumstance notwithstanding, defendant’s trial counsel never obtained the time-barred count’s dismissal. The jury consequently considered the two counts in tandem; indeed, the case was prosecuted upon the theory that defendant entered the dwelling where the complainant was sleeping with the intent to commit a theft, namely, the charged petit larceny.

On his appeal from the judgment convicting him of both indicted offenses, defendant argued that the trial court’s denial of his for-cause challenge to a prospective juror, a gentleman referred to as Mr. O, operated to deprive him of his right to a fair and impartial jury, and that his trial counsel’s failure to have the time-barred petit larceny count dismissed constituted ineffective assistance. The Appellate Division, however, affirmed the judgment of conviction, characterizing defendant’s for-cause challenge to the empaneling of Mr. O as unfounded, and noting without elaboration that defendant had not “demonstrat [ed] the absence of strategic or other legitimate explanations for counsel’s alleged shortcoming” (115 AD3d 872, 872 [2d Dept 2014] [internal quotation marks and citation omitted]). A Judge of this Court granted defendant permission to appeal (23 NY3d 1062 [2014]), and we now modify to the extent of granting defendant relief upon his ineffective assistance claim.

Defendant’s contention that the court erred in denying his for-cause challenge to Mr. O arises out of portions of the voir dire in which Mr. O advanced innocent explanations for untruthfulness — he offered that a witness might testify untruthfully by reason of forgetfulness or might simply be unintentionally mistaken. This prompted the court to inquire whether Mr. O agreed that “[s]ometimes people can lie knowing they are lying,” to which Mr. O responded “[r]ight.” Defendant’s argument, that Mr. O’s responses raised a substantial, unsatisfactorily resolved question as to whether he understood that a witness, even though under oath, could give knowingly false testimony, is, we think, premised on a strained interpretation of Mr. O’s responses that the court was not obliged to adopt. Mr. O’s natural willingness to entertain ethically benign explanations for untruthfulness did not bespeak utter credulity in the face of sworn averment; it did not reasonably raise a red flag that he possessed “a state of mind that [was] likely to preclude him from rendering an impartial verdict” (CPL 270.20 [1] [b]). We have in this connection recognized that

“most if not all jurors bring some predispositions, of varying intensity, when they enter the jury box. It is only when it is shown that there is a substantial risk that such predispositions will affect the ability of the particular juror to discharge his responsibilities (a determination committed largely to judgment of the Trial Judge with his peculiar opportunities to make a fair evaluation) that his excuse is warranted” (People v Williams, 63 NY2d 882, 885 [1984]; accord People v Johnson, 94 NY2d 600, 613 [2000]).

It is plain that this “substantial risk” threshold was not crossed by Mr. O’s statements. Nothing said by Mr. O cast significant doubt on his ability to follow the standard jury instructions respecting a juror’s obligation to judge whether a witness is telling the truth, and whether any falsehood is deliberate.

Turning now to defendant’s ineffective assistance claim, we have held in People v Turner (5 NY3d 476 [2005]) that such a claim may be premised on a singular omission by counsel to secure the dismissal of a time-barred count. Our conclusion that Turner had been deprived of effective assistance rested on the circumstance that the failure of his attorney to raise the statute of limitations to prevent the submission of manslaughter as a lesser included offense of murder could not be reconciled with the attorney’s trial strategy; counsel had announced that he was pursuing an all-or-nothing defense of the murder count and had actively opposed the prosecutor’s request to charge manslaughter as a lesser included offense because he did “ ‘not want to give a jury the chance to compromise’ ” (id. at 478; cf. People v Evans, 16 NY3d 571, 576 [2011], cert denied 565 US —, 132 S Ct 325 [2011]; People v Ambers, 26 NY3d 313 [2015] [decided herewith]). Counsel’s failure to raise the statute of limitations — the most certainly efficacious means of achieving his announced purpose of preventing a compromise manslaughter verdict — admitted of no rational explanation, and it was thus clear that counsel’s representation had not met the relevant standard of objective reasonableness set forth in Strickland v Washington (466 US 668, 688-689 [1984]) (see Turner, 5 NY3d at 479-480, 484 [“(o)nce that decision (to gamble on an outright acquittal) was made, it could not have been rational for trial counsel to abandon a statute of limitations defense that would have prevented the (lesser) charge from being submitted”]). It was also evident that Turner had in consequence of this representational lapse been prejudiced, having been saddled with a completely avoidable conviction.

Here, there could have been no strategic purpose for failing to raise the statute of limitations as against the time-barred charge. This is evident not by reason of an announced election to seek an outright acquittal, as in Turner, but because the charge’s submission was in the context of this prosecution objectively incapable of enabling any compromise verdict, much less the particular compromise verdict sought by trial counsel. In light of the DNA evidence all but irrefutably proving the trespass component of the charged burglary, a finding of guilt on the petit larceny count would as a practical matter have dictated a finding of guilt on the burglary count as well. Accordingly, the defense strategy was not, and could not reasonably have been, to contend that defendant had merely committed petit larceny, but that he had done no more than trespass, and in that connection to point out that what he indisputably did within the residence, i.e., ejaculate on the complainant, was not in 2002 a crime. Counsel’s argument was that his client’s intent to engage in unsavory, but not at the time criminal conduct, could not be used to elevate his trespass to burglary. It was completely inconsistent with this line of defense to allow the petit larceny count to remain in the indictment, since, as noted, proof of the alleged petit larceny also proved the charged burglary and in so doing operated to preclude the compromise verdict counsel sought convicting defendant only of trespass.

The irreducible fact is that defendant was avoidably convicted of a crime by reason of his attorney’s rationally inexplicable failure to have a time-barred count dismissed. It is true that counsel’s lapse in not raising the time-bar defense was not “completely dispositive” of the case, but neither was it in Turner, where counsel’s lapse was only completely dispositive of the time-barred manslaughter count; Turner was acquitted on the top, murder count — a circumstance certainly not traceable to the cited lapse, and not indicative of the sort of pervasive representational failure ordinarily necessary to support an ineffective assistance claim. We nonetheless granted relief on an ineffective assistance theory with respect to the representation on the manslaughter count because the error in failing to raise the statute of limitations was “clear-cut” and the unraised defense would have been “completely dispositive,” albeit only of the manslaughter count (Turner, 5 NY3d at 481). Recognizing that this was a most unusual application of the ineffective assistance doctrine, we took care to

“reaffirm . . . that such errors as overlooking a useful piece of evidence, or failing to take maximum advantage of a Rosario violation, do not in themselves render counsel constitutionally ineffective where his or her overall performance is adequate. But neither [of those failings] involvefs] the failure to raise a defense as clear-cut and completely dispositive as a statute of limitations. Such a failure, in the absence of a reasonable explanation for it, is hard to reconcile with a defendant’s constitutional right to the effective assistance of counsel” (id. at 480-481 [emphasis added and citations omitted]).

What we recognized in Turner, even if only implicitly, was that an unreasonable omission to raise a clear-cut defense completely dispositive of a charge for which the defendant was ultimately convicted should not be subsumed within the “totality” of the representation for purposes of determining the availability of relief for ineffective assistance. The reason for this is not difficult to discern — we would otherwise countenance time-barred prosecutions enabled solely by objectively unreasonable lapses on the part of defense counsel. This unseemly coincidence, on the one hand of prosecutorial overreaching and the other of representational neglect, incompatible in its outcome with the legislatively expressed public policy against stale prosecutions (see Toussie v United States, 397 US 112, 114-115 [1970]; People v Seda, 93 NY2d 307, 311-312 [1999]), is not, when it results in an entirely gratuitous, strategically inexplicable conviction, one appropriately shielded from address under the ineffective assistance rubric by the competent balance of an attorney’s representational effort, particularly where, as here, the only relief sought is from the time-barred conviction. Claims such as defendant’s, presenting a clear-cut, objectively unreasonable failure by counsel to obtain the dismissal of a time-barred count, instance precisely the sort of breakdown in the adversary process understood in Strickland to be the quintessential ground for and target of an ineffective assistance claim (Strickland v Washington, 466 US at 696). And, under Strickland, it is irrevelant that the omission is not “completely dispositive” of the entire case. All a defendant must show is “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (id. at 694 [emphasis added]). It is obvious that this standard is met where an attorney unaccountably allows the submission of a time-barred count for which his client is convicted. Turner, of course, did not articulate a more demanding standard.

The freestanding claim we have recognized, predicated upon a single representational error, is, as we observed in Turner, by its nature extremely limited — solitary lapses as egregious and demonstrably prejudicial as an attorney’s failure to avoid a conviction on a time-barred count are rare, and can be made rarer still by responsible charging practices. Our decisions today and in Turner, then, signal no broad departure from the ordinarily applicable rule that it is the entire representational effort that should be weighed in judging whether counsel provided constitutionally effective representation.

Accordingly, the order of the Appellate Division should be modified by vacating defendant’s conviction on the charge of petit larceny and dismissing that charge in the indictment and, as so modified, affirmed.

Abdus-Salaam, J.

(dissenting). This Court has made clear on numerous occasions that an attorney may not be found to have rendered ineffective assistance where a reasonable strategy exists to support his or her performance (see People v Barboni, 21 NY3d 393, 406 [2013]; People v Evans, 16 NY3d 571, 575-576 [2011]; People v Satterfield, 66 NY2d 796, 798-799 [1985]). A claim of ineffective assistance of counsel is not an opportunity for courts 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” (Satterfield, 66 NY2d at 799-800). “[A] reviewing court must avoid confusing ‘true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis’ ” (People v Benevento, 91 NY2d 708, 712 [1998], quoting People v Baldi, 54 NY2d 137, 146 [1981]). Thus, in view of the totality of defense counsel’s representation, the strategies he or she employs need only be reasonable or plausible; we do not require that the strategy be a winning approach. Because in my opinion defendant’s trial counsel had a reasonable strategy, I dissent.

In People v Evans, this Court determined that the defense counsel’s decision not to seek dismissal of a time-barred lesser charge in order to provide the jury an opportunity to make a compromise verdict was a reasonable strategy (see 16 NY3d at 576). The facts of this case also present a circumstance where defendant’s trial counsel may have strategically intended to give the jury an opportunity to compromise. Defendant was facing a misdemeanor charge of petit larceny (see Penal Law § 155.25) and a felony burglary charge (see Penal Law § 140.25 [2]). Seeking dismissal of the petit larceny charge would likely ensure that defendant, if he were to be convicted at all, would be convicted of a felony. Although the burglary charge was premised upon petit larceny, dismissal of the petit larceny charge would not have ensured that defendant would be acquitted of burglary because evidence of the predicate offense for the burglary, namely the theft, would have been admitted at trial (see People v Ventimiglia, 52 NY2d 350, 359 [1981]; see also United States v Cook, 84 US 168 [1872]). Surely, given the fact that defendant’s DNA was recovered at the crime scene, it is quite possible that he would have been convicted of a crime. Facing the significant possibility of defendant’s conviction, trial counsel attempted to give the jurors the opportunity to convict defendant of a misdemeanor rather than a felony, which would certainly be a more favorable outcome for defendant, and, thus, I disagree with the majority’s assessment that the submission of the petit larceny charge to the jury was “objectively incapable of enabling any compromise verdict, much less the particular compromise verdict sought by trial counsel” (majority op at 326). Furthermore, that counsel’s strategy here was not successful should not render him ineffective, especially since he provided defendant with overall meaningful representation (see Benevento, 91 NY2d at 712-713).

Additionally, the majority’s remedy undercuts the conclusion that defendant’s counsel was ineffective. Where an attorney is held to have provided ineffective assistance, it is as if the defendant had no representation at all. Therefore, in cases where we have determined that counsel is ineffective, defendant’s conviction has been reversed and a new trial ordered (see People v Wright, 25 NY3d 769 [2015]; People v Oathout, 21 NY3d 127 [2013]; People v Oliveras, 21 NY3d 339 [2013]; People v Zaborski, 59 NY2d 863 [1983]). This is so because counsel’s performance must be viewed in its totality to determine whether he or she was ineffective (see Baldi, 54 NY2d at 147). Thus, counsel’s effectiveness or ineffectiveness permeates throughout the entire proceeding and affects every charge against the defendant. It is, therefore, inconsistent to conclude that counsel here was ineffective in failing to seek dismissal of the petit larceny charge but nonetheless hold that defendant’s conviction for burglary may stand, as such a conclusion indicates that, overall, counsel provided defendant meaningful representation. Contrary to the majority’s contention, in People v Turner (5 NY3d 476 [2005]), this Court did not implicitly recognize such a charge by charge analysis and dismissal of the totality standard. Turner does not reject the application of our totality of the representation test to determine ineffective assistance of counsel, for in Turner we specifically stated that counsel’s representation is “viewed in totality” (see id. at 480). Turner presents a rare expansion of our ineffective assistance of counsel jurisprudence to hold that a single error may support a determination that counsel’s overall performance was ineffective. The majority has expanded Turner by reading into the decision a standard whereby counsel’s ineffectiveness may be determined charge by charge, which is wholly inconsistent with our long-standing application of the totality test in these cases.

Despite the majority’s implementation of such a peculiar remedy, I believe that on this record defendant was provided overall meaningful representation and there exists grounds to support a plausible and reasonable strategy for counsel’s decision not to seek dismissal of the petit larceny charge. For these reasons, I cannot say that counsel was ineffective.

Judges Rivera, Stein and Fahey concur; Judge AbdusSalaam dissents in an opinion in which Judge Pigott concurs.

Order modified by vacating defendant’s conviction on the charge of petit larceny and dismissing that charge in the indictment and, as so modified, affirmed.

      . Burglary in the second degree, a class C felony, is subject to a five-year statutory period, which can be tolled for up to five years (CPL 30.10 [2] [b]; [a]). Here, the burglary prosecution commenced some 8V2 years after the charged offense was timely by reason of the applicability of the toll.

      . Petit larceny, a class A misdemeanor, is subject to a two-year statutory period (CPL 30.10 [2] [c]), so that even with the applicable five-year toll (CPL 30.10 [4] [a]), it was not, in 2011, timely charged based upon conduct dating back to 2002.

      . The possibility that Ambers’s counsel chose to allow the jury to consider certain time-barred misdemeanors in order to permit a compromise verdict convicting defendant of the misdemeanors but not the factually related felonies with which his client had been timely charged, was not possible to discount on the basis of the trial record (see People v Ambers, 26 NY3d 313, 319-320 [2015]). While Ambers’s trial counsel urged the jury to acquit on all counts and did not affirmatively seek a compromise verdict, that did not demonstrate a defense strategy to avoid a compromise verdict, as in Turner, and accordingly did not prove the absence of a reasonable strategic rationale for permitting the submission of the misdemeanor counts.

       I see little distinction between the possible strategy employed in People v Ambers (26 NY3d 313 [2015]) and the facts presented here. In both cases, the strategy employed provided the jury the opportunity to convict the defendant of a misdemeanor rather than a felony.


author: Stein, J. Chief Judge Lippman

text:
    [44 NE3d 149, 23 NYS3d 74]
    The People of the State of New York, Respondent, v Matthew P., Appellant.
    Argued October 13, 2015;
    decided November 19, 2015

      POINTS OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Amy Dormer of counsel), for appellant.
    I. The information for docket No. 2011NY046476 was jurisdictionally defective, as its allegations — that appellant let himself and two undercover police officers into a subway station emergency exit gate in exchange for $2 — failed to establish that appellant committed the crime of petit larceny, because the New York City Transit Authority was not the “owner” of any property allegedly taken as proscribed by the larceny statutes. (Penal Law §§ 155.00 [5]; 155.05 [1]; 155.25; CPL 100.15 [3]; 100.40 [4] [b]; People v High-tower, 18 NY3d 249 [2011].) (People v Dumay, 23 NY3d 518; People v Dreyden, 15 NY3d 100; People v Case, 42 NY2d 98; People v Kalin, 12 NY3d 225; People v Jones, 9 NY3d 259; People v Alejandro, 70 NY2d 133; People v Casey, 95 NY2d 354; People v Henderson, 92 NY2d 677; People v Zinke, 76 NY2d 8; People v Nappo, 94 NY2d 564.) II. The information for docket No. 2011CN005767, charging theft of services, was jurisdiction-ally defective, where it did not allege evidentiary facts to support its conclusory allegations that, when appellant allegedly entered a subway exit gate, he did not have authority or permission or pay the required fare. (CPL 100.15 [3]; 100.40 [4] [b]; Penal Law § 165.15 [3]; People v Dreyden, 15 NY3d 100 [2010]; People v Kalin, 12 NY3d 225, 228 [2009].) (People v Alejandro, 70 NY2d 133; People v Dumay, 23 NY3d 518; People v Case, 42 NY2d 98; People v Jones, 9 NY3d 259; People v Henderson, 92 NY2d 677; People v Pin, 41 Misc 3d 128[A], 2013 NY Slip Op 51681[U]; People v Jackson, 18 NY3d 738; People v Rowland, 8 NY3d 342; People v Taylor, 80 NY3d 1; People v Boston, 75 NY2d 585.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Ryan Gee and Alice Wiseman of counsel), for respondent.
    I. The accusatory instrument charging defendant with petit larceny was jurisdictionally sufficient. (People v Hightower, 18 NY3d 249; People v Spatarella, 34 NY2d 157; People v Dumay, 23 NY3d 518; People v Kalin, 12 NY3d 225; People v Jackson, 18 NY3d 738; People v Konieczny, 2 NY3d 569; People v Alejandro, 70 NY2d 133; People v Dreyden, 15 NY3d 100; People v Casey, 95 NY2d 354; People v Jennings, 69 NY2d 103.) II. The accusatory instrument charging defendant with theft of services was jurisdictionally sufficient. (People v Konieczny, 2 NY3d 569; People v Dreyden, 15 NY3d 100; People v Hansen, 95 NY2d 227; People v Casey, 95 NY2d 354; People v Jackson, 18 NY3d 738; People v Henderson, 92 NY2d 677; People v Suber, 19 NY3d 247; People v Kalin, 12 NY3d 225; People v Allen, 92 NY2d 378; People v Davis, 13 NY3d 17.)
   OPINION OF THE COURT

Stein, J.

In this appeal, we are asked to consider whether our decision in People v Hightower (18 NY3d 249 [2011]) precludes the larceny prosecution of a defendant who, in exchange for a fee, used a stolen New York City Transit Authority (hereinafter NYCTA) key to allow two individuals to enter the subway system through an emergency exit gate. Inasmuch as High-tower is distinguishable and does not bar prosecution under the circumstances of this case, the Appellate Term properly upheld defendant’s conviction. We, therefore, affirm.

L

In June 2011, defendant was charged, by misdemeanor information, with petit larceny, among other crimes. The factual portion of the information alleged that defendant approached two undercover transit police officers inside a subway station and said, “you have $2, I will let you in.” Upon defendant’s receipt of payment, the officers saw him “take a key, open the emergency exit gate and allow [the officers] and defendant through said gate into the subway system, thereby depriving the [NYCTA] of revenue otherwise owed it by the defendant for access to the subway system.” The deponent officer picked up the key from the ground where she saw defendant throw it; defendant then told the officer, “if I told the guy that taught me this he would laugh at me, I should have known you were both cops.” Based upon her training and experience, the deponent officer stated that only NYCTA employees have permission to possess such a key, and that defendant did not have permission or authority to take the key or use it.

Defendant pleaded guilty to petit larceny under the information; he also pleaded guilty to theft of services under a second information. As agreed, he received youthful offender treatment and an aggregate sentence of 15 days in jail. On his appeal, the Appellate Term affirmed, rejecting defendant’s challenge to the information charging him with petit larceny as jurisdictionally defective (41 Misc 3d 128[A], 2013 NY Slip Op 51681[U] [App Term, 1st Dept 2013]). A Judge of this Court granted defendant leave to appeal (23 NY3d 1024 [2014]).

IL

It is well settled that “ ‘[a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ ” (People v Dreyden, 15 NY3d 100, 103 [2010], quoting People v Case, 42 NY2d 98, 99 [1977]; see People v Kalin, 12 NY3d 225, 229 [2009]). To be legally sufficient, “the factual portion of a local criminal court information” must meet the requirements

“that it state Tacts of an evidentiary character supporting or tending to support the charges’ (CPL 100.15 [3]; see, CPL 100.40 [1] [a]); that the ‘allegations of the factual part. . . together with those of any supporting depositions . . . provide reasonable cause to believe that the defendant committed the offense charged’ (CPL 100.40 [1] [b]); and that the ‘[n] on-hearsay allegations [of the information and supporting depositions] establish, if true, every element of the offense charged and the defendant’s commission thereof’ (CPL 100.40 [1] [c]; see, CPL 100.15 [3])” (People v Casey, 95 NY2d 354, 360 [2000]).

A failure to comply with either the reasonable cause requirement of section 100.40 (1) (b) or the prima facie case requirement of section 100.40 (1) (c) constitutes a jurisdictional defect (see Hightower, 18 NY3d at 254; People v Jones, 9 NY3d 259, 262-263 [2007]).

Stated otherwise, “[a]n information is valid for jurisdictional purposes if it contains nonconclusory factual allegations that, if assumed to be true, address each element of the crime charged, thereby affording reasonable cause to believe that defendant committed that offense” (People v Jackson, 18 NY3d 738, 741 [2012]). This standard is met when “the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense” (Casey, 95 NY2d at 360). Moreover, as we have repeatedly emphasized, if an accused has received fair notice and double jeopardy has been forestalled, the factual portion of the information “should be given a fair and not overly restrictive or technical reading” (id.; see Jackson, 18 NY3d at 746; Dreyden, 15 NY3d at 103; Kalin, 12 NY3d at 230).

Here, defendant argues that the allegations in the information — that he used a NYCTA key (that he did not have authorization to use) to let two undercover police officers through a subway station emergency exit gate in exchange for $2 — did not establish that he committed the crime of petit larceny because the NYCTA was not the “owner” of any property that was taken within the meaning of the larceny statutes. In charging defendant with larceny by information, the People were required to establish reasonable cause to believe that, “with intent to deprive another of property or to appropriate the same to himself or to a third person, [defendant] wrongfully t[ook], obtain [ed] or with [held] such property from an owner thereof” (Penal Law §§ 155.05 [1] [emphasis added]; see 155.25). “Property” includes “any money, personal property, ... or thing of value” (Penal Law § 155.00 [1]). In regard to the challenged element here, an “owner” is defined as “any person who has a right to possession [of property] superior to that of the taker, obtainer or withholder” (Penal Law § 155.00 [5]). As reflected in its text, section 155.00 (5) “defines ownership broadly . . . [and] codifies the common-law rule, long recognized in this State, that ownership is not limited to the title owner of the property. Rather, it is enough that the person have a right to possession of the property superior to that of the thief” (People v Wilson, 93 NY2d 222, 225 [1999] [citations omitted]). Thus, as we have repeatedly explained, “the definition of ownership does not require that the owner have ‘an independent right of possession but only that he [or she has] a possessory right which, however limited or contingent, [is] superior to that of defendant’ ” (id. at 225-226, quoting People v Hutchinson, 56 NY2d 868, 869 [1982]).

Under circumstances that were similar to, but distinguishable from, those presented here, this Court previously concluded that an information did not provide reasonable cause to believe that the defendant committed the charged offense of petit larceny where the information alleged that he used an unlimited MetroCard to swipe another person through a subway turnstile in exchange for money (see Hightower, 18 NY3d at 254). We noted that the unlimited MetroCard at issue in Hightower was legally transferrable, although the person lending or giving away the card was not permitted to accept money in exchange (see id. at 252). Critically, while we acknowledged our prior holding in People v Spatarella (34 NY2d 157, 162 [1974]) that, as Hightower put it, “taking away a portion of a person [’s] or entity’s business” could constitute larceny under certain circumstances, we distinguished High-tower on the ground that “the NYCTA voluntarily transferred [the] valid MetroCard in a manner consistent with its ordinary course of business by selling the card and receiving the price it set” (18 NY3d at 255 [emphasis added]). That distinguishing factor is not present here. The NYCTA was not the owner of the unlimited MetroCard in Hightower or the “business” associated with it because, as compared with the defendant, who lawfully purchased the unlimited MetroCard, the NYCTA did not have a superior right of possession. That is, under the circumstances presented in Hightower, once the NYCTA sold the card to defendant, it could not reasonably expect to profit from the use of the card. Thus, the defendant did not commit petit larceny because “the unknown amount of money paid to defendant could have been due and owing to the NYCTA, but . . . [it] never acquired a sufficient interest in the money to become an ‘owner’ ” within the meaning of the statute (Hightower, 18 NY3d at 255).

In contrast, the Appellate Division, First Department, has concluded, albeit in dicta, that legally sufficient evidence supported a conviction of petit larceny where a defendant used a MetroCard with a bent magnetic strip to sell rides to other persons (People v James, 101 AD3d 447, 448 [1st Dept 2012], lv denied, 20 NY3d 1062 [2013]). Distinguishing Hightower— which involved a purchased, legally transferrable, unaltered MetroCard — the First Department concluded that the defendant was guilty of petit larceny because “he sold ‘swipes’ that rightfully belonged to the [NYCTA]” through unauthorized use of an altered MetroCard (James, 101 AD3d at 448). Similarly here, the NYCTA did not voluntarily transfer the key that defendant used to sell entrance to the subway system or receive a set price for it (cf. Hightower, 18 NY3d at 255). Unlike the MetroCard at issue in Hightower, the NYCTA was the rightful owner of the key because it “had a right of possession [of the key] superior to that of defendant, who had no right of possession whatsoever” (People v Hutchinson, 56 NY2d at 869). Nor did defendant have any possessory right or lawful expectation with respect to the business generated from the use of the key.

In short, the information adequately alleged all the elements of a larceny in setting forth defendant’s unauthorized use of the illegally-obtained key to allow the undercover officers to enter through the emergency exit gate in exchange for money, thereby depriving the NYCTA, as the owner, of its property. Accordingly, Appellate Term properly rejected defendant’s argument that the information was jurisdictionally defective and affirmed his conviction. Finally, we reject defendant’s remaining argument as lacking in merit.

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

Chief Judge Lippman

(dissenting). Defendant’s conduct was clearly illegal and is not to be condoned, but it does not amount to petit larceny. He could have, instead, properly been charged with theft of services (Penal Law § 165.15 [3]) or illegal access to Transit Authority services (21 NYCRR 1050.4 [c]), which apply directly to either obtaining or providing illegal access to the subway system. This case, however, where defendant sold access to the subway system, which he then provided by use of a key, is not meaningfully distinguishable from People v Hightower (18 NY3d 249 [2011]). I therefore dissent and would hold that the information was jurisdictionally defective because the New York City Transit Authority (NYCTA) was not the owner of property, either in the form of potential fares or the money paid to defendant, within the meaning of the larceny statute.

In Hightower, the defendant had used an unlimited Metro-Card to allow other individuals access to the subway system in exchange for a fee. There, we determined that the accusatory instrument was jurisdictionally defective as to the charge of petit larceny because it did not provide reasonable cause to believe that the defendant had taken property belonging to the NYCTA. We held that the NYCTA had not been “deprived of the unknown amount of money that defendant accepted from the subway rider because it never owned those funds” (Hightower, 18 NY3d at 255).

Analogizing the NYCTA’s lack of ownership of the potential fare to the State’s lack of ownership of uncollected taxes, we relied upon People v Nappo (94 NY2d 564 [2000]), where the defendants had been charged with larceny for failing to pay the required taxes on motor fuel that had been imported from New Jersey. There, we had held that, although the failure to remit applicable taxes was a violation of the Tax Law, the “defendants did not steal money that belonged to New York State,” as “[t]he taxes due were not the property of the State prior to their remittance” (Nappo, 94 NY2d at 566). Thus, in High-tower, we determined that “the unknown amount of money paid to [the] defendant could have been due and owing to the NYCTA, but . . . the NYCTA never acquired a sufficient interest in the money to become an ‘owner’ within the meaning of Penal Law § 155.00 (5)” (18 NY3d at 255). Similarly, here, the NYCTA was not the “owner” of the funds paid to defendant by the undercover officers.

The majority appears to view the NYCTA’s “ownership” of potential fares as dependent upon the mechanism an individual uses to gain access to the subway system. However, the NYC-TA’s rightful ownership of the key used by defendant here bears no relationship to the issue of the NYCTA’s ownership of potential subway fares. Hightower does not stand for the proposition that the NYCTA had an ownership interest in potential fares that it somehow ceded to the defendant when he purchased a valid unlimited MetroCard. Rather, the NYCTA was “never” the owner of the potential fares arrogated by the defendant through use of the MetroCard (see 18 NY3d at 255).

Notably, in rejecting the argument that the defendant in Hightower had been guilty of petit larceny by depriving the NYCTA of a portion of its business, we distinguished the situation where a business is forced to give up an existing customer (18 NY3d at 255). We declined to extend the reasoning of People v Spatarella (34 NY2d 157 [1974]), where the defendant was guilty of larceny by extortion, to the situation where the NYCTA had voluntarily sold a MetroCard to the defendant. In Spatarella, the defendant had disrupted an existing business relationship for refuse removal by threatening the former provider with bodily harm unless he gave up his customer. There, we concluded that intangible rights, such as a party’s business, could be considered property, subject to larceny by extortion (see 34 NY2d at 162). However, in declining to apply the reasoning of Spatarella in Hightower, we distinguished the situation where an individual was forced to give up an existing business customer, from the more closely analogous case presented in Nappo, where the taxes were not yet in the State’s possession or control. Here, the NYCTA’s ownership of the unpaid fares is no less inchoate than that presented in High-tower.

Accordingly, because the NYCTA was not the owner of the potential fares or the money paid to defendant, I would modify the Appellate Term order to vacate the plea to petit larceny and dismiss that information.

Judges Pigott, Rivera, Abdus-Salaam and Fahey concur; Chief Judge Lippman dissents in an opinion.

Order affirmed.

       We have referred to the requirement set forth in CPL 100.40 (1) (c) as “the prima facie case requirement” (People v Dumay, 23 NY3d 518, 522 [2014] [internal quotation marks and citations omitted]). However, we have also clarified that CPL 100.40 (1) (c), in fact, has “two ‘prima facie’ requirements . . . that first, there must be factual allegations establishing every element of the offense and second, those allegations must be ‘non-hearsay’ ” (Casey, 95 NY2d 354, 362 [2000]). Only the first prima facie requirement— that the information state a crime by alleging all of the necessary elements — is jurisdictional and nonwaivable (see id. at 362-367).