author: Graffeo, J. Read, J. (dissenting in part).

text:
    [918 NE2d 107, 889 NYS2d 517]
    In the Matter of Crucible Materials Corporation et al., Respondents, v New York Power Authority, Appellant.
    Argued September 9, 2009;
    decided October 20, 2009

      POINTS OF COUNSEL

      Terryl Brown Clemons, General Counsel, New York Power Authority, White Plains (.Eileen P Flynn and Arthur T. Cambouris of counsel), for appellant.
    I. As the statute plainly requires, the rebate’s base year is the final year of the Power for Jobs program customer’s power contract. (Sega v State of New York, 60 NY2d 183; Matter of Malta Town Ctr. I, Ltd. u Town of Malta Bd. of Assessment Review, 3 NY3d 563; Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 425.) II. Economic Development Law § 189 (a) (5) does not provide respondents with both restitution and rebate benefits. (McKechnie v Ortiz, 132 AD2d 472; Woollcott v Shubert, 217 NY 212; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.)

      Couch White, LLP, Albany (James J. Barriere, Robert M. Loughney, Michael T. Wallender and Nathan R. Sabourin of counsel), for respondents.
    I. In enacting the 2006 Power for Jobs program amendments, the Legislature provided manufacturing participants with a retroactive “restitution” benefit and a prospective “rebate” benefit. (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Matter of Astoria Gas Turbine Power, LLC v Tax Commn. of City of N.Y., 14 AD3d 553, 7 NY3d 451; People v Ryan, 274 NY 149; N.Y.A.A.D., Inc. v State of New York, 1 NY3d 245; Matter of Greer v Wing, 95 NY2d 676; Matter of On Bank & Trust Co., 90 NY2d 725; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151.) II. Rebates for phase 5 Power for Jobs program participants are measured by 2005 electric rates.
   OPINION OF THE COURT

Graffeo, J.

This case involves a controversy between the New York Power Authority (NYPA) and manufacturers that participate in the Power for Jobs (PFJ) program. At issue is the proper interpretation of certain 2006 amendments to Economic Development Law § 189.

The Power for Jobs program was originally enacted in 1997 to ameliorate the effects of energy deregulation, which had led to increases in energy costs and unpredictable price fluctuations. The initiative authorizes NYPA to procure electricity from power producers and make it available to businesses that elect to enter into PFJ contracts; the contracts ensure that the businesses will receive a certain quantity of power at a predetermined price during a prescribed time period. In exchange for receiving electricity at guaranteed prices, the businesses agree to remain in New York and, in some cases, commit to the creation of additional jobs. The objective of the program is to assist manufacturers and other commercial enterprises in their efforts to remain competitive despite New York’s relatively high-priced energy market. Although the legislative expectation is that NYPA will supply power at below-market rates, the contracts do not guarantee that result.

The program, which is codified at Economic Development Law § 189, was initially scheduled to continue for only three years but has been repeatedly extended and amended by the Legislature. When the program commenced, businesses entered into contracts with NYPA for a three-year term and each of the first three years was referred to as a “phase” with participants deemed phase one, two or three depending on the year of their first contract. In 2000, the program was amended to add a fourth phase that permitted phase one participants—whose three-year contracts were expiring—to extend their contracts. As a result of 2002 legislation, a fifth phase was authorized whereby phase two and three customers were similarly offered contract extensions. Although the PFJ program has been extended since 2002, the Legislature has not characterized these subsequent extensions as new sequential “phases” and, as a result, the last phase was phase five, which ended in December 2005 (see Economic Development Law § 189 [e] [3]).

In 2004, the Legislature again continued the program but made significant changes so that participants were given the option of either extending their contracts or letting them expire in order to join an “electricity savings reimbursement” program, referred to as the Rebate Program (see Economic Development Law § 189 [a] [5], as added by L 2004, ch 59, part T, § 3). Under this alternative to the PFJ contract, a business would purchase power directly from a local power company and would be reimbursed by NYPA for costs paid to the local provider that exceeded the unit cost of power that the business had paid under phase four or five of the program. In other words, the rates paid under the PFJ contract would become the baseline that prospective power costs would be measured against and NYPA would have to cover—in the form of a rebate—any excess energy costs the businesses incurred when purchasing from local providers. This Rebate Program ensured that businesses that had previously participated in the PFJ contract program could obtain specified amounts of electricity at prices at least as favorable as those they paid under their expired contracts.

In 2006, due to market fluctuations, some PFJ contract businesses incurred higher costs for energy secured through NYPA than they would have paid if they had purchased power directly from their local providers. To address this situation, in August 2006, Economic Development Law § 189 was amended yet again (see L 2006, ch 645, § 3). As had occurred in the past, the amendment continued the PFJ contract program by allowing extensions of contracts for an additional six months (setting a new sunset date of June 30, 2007) and authorized businesses to let their contracts lapse and opt instead to participate in the Rebate Program.

But the 2006 legislation added an additional paragraph to Economic Development Law § 189 (a) (5) that accomplished two things. First, it created a new Restitution Benefit for participants that had paid higher energy costs under their PFJ contracts than they would have paid by purchasing from local providers. The Legislature required NYPA to reimburse such participants for the difference in costs retroactive to January 1, 2006. Second, it provided a specific benefit to a subset of PFJ participants—manufacturers—allowing manufacturers that had renewed their contracts to withdraw their renewals and convert to the Rebate Program without having to wait until their contracts expired. What the 2006 amendment did not do, however, was amend the rebate calculation language from the 2004 legislation, meaning that it continued to use the rates charged in the last year of the phase four and five contracts as the baseline for determining rebates.

After the effective date of the 2006 amendments, NYPA— which had opposed this legislative proposal (see NYPA letter in opposition, Bill Jacket, L 2006, ch 645, at 20-24)—advised PFJ participants of the change in the law and gave its interpretation of the statutory amendments. In November 6, 2006 correspondence, NYPA notified manufacturers with PFJ contracts that they had 10 days to make a choice between continuing their contracts and obtaining the Restitution Benefit or ending their contracts and joining the Rebate Program. NYPA further explained how rebates would be calculated, stating that it intended to use the price that participants paid under their contracts during the 12 months preceding conversion to the Rebate Program—which would be calendar year 2006 for most participants—to determine the baseline against which new energy costs would be compared to determine whether a rebate was warranted. Finally, NYPA informed participants that restitution payments would not be made until the last quarter of 2007.

Petitioners Crucible Materials Corp. and Syracuse Castings Sales Corp., along with other similarly-situated manufacturers, immediately objected to NYPA’s interpretation of the 2006 amendments, arguing that NYPA had incorrectly read the legislation to require participants to elect between the Restitution Benefit and the Rebate Program when the Legislature had intended that manufacturers should be able to take advantage of both benefits. They also complained about the use of calendar year 2006 as the baseline for determining whether payments would be forthcoming under the Rebate Program, contending that NYPA’s view was inconsistent with the language in the statute and severely undermined the value of the Rebate Program because 2006 was the year contract participants paid above-market prices. And they further disagreed with NYPA’s decision to delay restitution payments until late 2007. Given the short deadline provided by NYPA, however, Crucible Materials and Syracuse Castings both chose to continue their contracts and obtain the Restitution Benefit, albeit under protest.

In February 2007, petitioners commenced this timely CPLR article 78 proceeding challenging NYPA’s determination under Economic Development Law § 189 (a) (5), repeating the points asserted in the letter of complaint. After NYPA answered, Supreme Court dismissed the petition in its entirety, crediting NYPA’s interpretation of the amendments. The Appellate Division modified by granting the petition in part (50 AD3d 1353 [2008]). It agreed with petitioners that the 2006 amendments authorized manufacturers to take advantage of both the Restitution Benefit and the Rebate Program. It further concluded that NYPA erred in selecting 2006 as the baseline for calculating rebates, resting its decision on the language of the rebate calculation provision. However, the Appellate Division upheld as neither arbitrary nor capricious NYPA’s decision to defer payment of the Restitution Benefit until the last quarter of 2007, reasoning that the agency had discretion to determine the timing of payments since the legislation did not contain a payment schedule. This Court granted NYPA leave to appeal (11 NY3d 712 [2008]) and we now affirm.

NYPA’s Election of Benefits Determination

Both parties agree that the dispute concerning whether manufacturers could receive both restitution and rebate benefits or had to choose between the two turns on language that was added to Economic Development Law § 189 (a) (5) in 2006. NYPA does not contend that its interpretation of the statute is entitled to deference, nor is this the type of case where deference to an administrative agency would be appropriate as it does not involve “specialized knowledge and understanding of underlying operational practice or entail[ ] an evaluation of factual data and inferences to be drawn therefrom” (see Matter of KSLM-Columbus Apts., Inc. v New York State Div. ofHous. & Community Renewal, 5 NY3d 303, 312 [2005] [internal quotation marks and citations omitted]). When interpreting a statute, “[i]t is fundamental that a court . . . should attempt to effectuate the intent of the Legislature. The starting point is always to look to the language itself and where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning” (Pultz v Economakis, 10 NY3d 542, 547 [2008], quoting State of New York v Patricia II., 6 NY3d 160, 162 [2006]).

Turning to the statutory scheme, since 2004 the Rebate Program has been addressed in the first paragraph of Economic Development Law § 189 (a) (5). The 2006 amendment added the following paragraph to that section:

“Provided further that, notwithstanding any provision of law to the contrary, for the period beginning [January 1, 2006], for recipients who choose to elect a contract extension, and whose unit cost of electricity under such contract extension exceeds the unit cost of electricity of the [local electricity provider], the power authority shall reimburse the recipient for all dollars paid in excess of the unit cost of electricity of the [local electricity provider]. In addition, a recipient that is a manufacturer that elected a contract extension, may choose to withdraw such election and instead may choose to elect an electricity savings reimbursement upon notice to the power authority. Such electricity savings reimbursement shall be calculated according to the formula for the basic reimbursement as explained in this paragraph” (L 2006, ch 645, § 3 [emphasis added]).

The first sentence created a new Restitution Benefit that allowed PFJ contract participants to recoup from NYPA overpayments they made under their contracts retroactive to the beginning of January 2006. The second sentence provided a special advantage to PFJ participants engaged in manufacturing, permitting them to withdraw from their contracts and join the Rebate Program during the contract term, meaning they were not locked into contract extensions. And the third sentence clarified that rebates would continue to be calculated under the formula that was added to the statute in 2004 when the Rebate Program was first created.

Based on the language and organization of this provision, we see no evidence that the Legislature contemplated that manufacturers would be required to choose between the two programs—to either select the Restitution Benefit or opt out of their contracts and participate in the Rebate Program. The language of the amendment contains no terminology suggesting that such an election must be made. The second sentence— allowing manufacturers that have extended their contracts to withdraw the extensions and join the Rebate Program—begins with the words “in addition.” This is hardly the language we would expect to see if the Legislature intended that manufacturers must make a choice between the benefit granted in the first sentence and the benefit defined in the second. If such an election of benefits had been the objective, the second sentence would have included a clause conditioning the “opt out” benefit; for example, it might have read “in lieu of being reimbursed for overpayments” manufacturers may join the Rebate Program or “manufacturers may opt instead” to withdraw from their contracts and participate in the Rebate Program. NYPA asserts that the phrase “in addition” is merely a transition and was not meant to have any substantive effect. But even if we credited this argument—and we generally do not presume that words chosen by the Legislature have no meaning—it does not support NYPA’s election of benefits determination because, when the “in addition” clause is omitted, what remains is a paragraph that defines two benefits potentially available to manufacturers without indicating that they are mutually exclusive.

NYPA suggests that a single manufacturer cannot qualify for both benefits because the Restitution Benefit applies to those with contracts and the Rebate Program applies only to those who have opted out or not renewed their contracts. But when the Legislature adopted the amendments in August 2006, it made the Restitution Benefit retroactive to January 1, 2006. At the time the statute became law, some manufacturers (like petitioners) had been paying higher energy costs under their PFJ contracts than they would have paid had they bought electricity directly from local power companies. Hence, they were already entitled to up to eight months of restitution for overpayments they had made under their contracts (by the time NYPA implemented the statute three months later, the value of the Restitution Benefit was potentially even greater). Manufacturers in this position could conceivably receive a Restitution Benefit and then withdraw their contract extensions (or decline to renew their contracts at the end of December 2006) to join the Rebate Program. Under NYPA’s analysis, these manufacturers would have to waive their right to a Restitution Benefit already earned in order to take advantage of the opt out clause in the second sentence. We do not believe this result is required by the language in the statute.

Nor is NYPA’s view consistent with the legislative history of the 2006 amendments. Though not conclusive, that history tends to support the petitioners’ reading of the statute. The Senate sponsor explained that the legislation would “provide reimbursements for Power for Jobs customers who paid higher than market price rates this last winter” and “would also allow manufacturers that are contract customers to switch to the rebate program” (Letter of Senator Wright, Bill Jacket, L 2006, ch 645, at 4 [emphasis added]). Then-Assemblymember Paul Tonko, the Assembly sponsor, noted that the legislation:

“Requires the Power Authority of the State of New York (PASNY) to allow PFJ manufacturers paying higher than market prices under their PFJ contract extensions to switch to a rebate form of the program, which would hold them harmless against rate fluctuations and would provide a discounted rate; and,
“Requires PASNY to make up the difference between the rates the businesses would have paid for energy to their local utility as compared to the higher price PASNY charged them under their contract extensions, retroactive to January 1, 2006” (Assembly Sponsor’s Mem in Support, Bill Jacket, L 2006, ch 645, at 5 [emphasis added]).

The phrase “the businesses” in the second sentence refers back to the “PFJ manufacturers” cited in the first sentence—those that had paid higher-than-market energy prices during the winter of 2006 under their PFJ contracts. The Assembly sponsor’s observations make no sense if, as NYPA claims, the legislative objective had been to have these manufacturers choose between recouping their overpayments and prospectively joining the Rebate Program. The Division of the Budget similarly concluded that “NYPA must allow customers to maximize benefits by switching from the contract extension to the rebate program and retroactively reimburse customers that paid rates above the market price” (Budget Report on Bills, Bill Jacket, L 2006, ch 645, at 10 [emphasis added]). In fact, the increased costs associated with these dual requirements led the Division to recommend that the Governor veto the amendments (id. at 10-11).

The Bill Jacket thus indicates that the Legislature intended that benefits to PFJ participants—particularly manufacturers—be extended and expanded, rather than interrupted. Since the Restitution Benefit was created to provide a remedy to businesses that paid higher prices under their PFJ contracts than they would have paid if they purchased power from local providers, there is no reason to impose a strained interpretation of the clause to require that these same participants forgo recoupment of those overpayments in order to receive a future benefit. Nor is it necessary to adopt NYPA’s view of the statute in order to avoid “double dipping” by manufacturers since the Rebate Program grants prospective relief while the Restitution Benefit covers overpayments already made. We therefore agree with the Appellate Division that NYPA’s determination was erroneous insofar as it required petitioners to choose between the Restitution Benefit and the Rebate Program.

NYPA’s Rebate Calculation Determination

The Rebate Program allows participants that had PFJ contracts to decline to renew those contracts and instead purchase power directly from local providers. If participants have to pay more for the power they buy from local providers than they would have paid under the NYPA contract, NYPA is obligated to give the participant a “power for jobs electricity savings reimbursement” or rebate. The rebate is the difference between the unit cost of electricity the participant paid the provider (on average, each quarter) and the price the participant paid under the PFJ contract during a particular time frame. In this case, the parties disagree on the time frame that NYPA must use as the baseline for comparison when calculating whether a rebate is warranted and, if so, the amount of the rebate.

The Rebate Program was established in 2004 when the first paragraph of Economic Development Law § 189 (a) (5) was enacted (see L 2004, ch 59, part T, § 3). The 2006 amendments gave manufacturers that had already extended their contracts the option of withdrawing their renewals and choosing instead to participate in the Rebate Program. But it did not change how rebates are calculated, stating: “Such electricity savings reimbursement shall be calculated according to the formula for the basic reimbursement as explained in this paragraph” (L 2006, ch 645, § 3). Thus, the amendment referred back to the formula developed in the 2004 legislation, which requires that the price the participant paid to a local provider be compared against “the average unit cost of electricity such recipient paid during the final year of the contract for power allocated under phase four or five of the power for jobs program” (see Economic Development Law § 189 [a] [5]).

In interpreting this provision as establishing that baseline contract costs would be the price participants paid NYPA in 2006, NYPA focused on the phrase “during the final year of the contract,” noting that those who opted out of their contracts as a result of the 2006 amendments would be doing so at the end of 2006 (meaning the final year of the contract would be 2006). Objecting to this view, petitioners contended that this phrase be read in conjunction with the language that follows it, meaning that the baseline is “the average unit cost of electricity . . . paid during the final year of the contract . . . under phase four or five of the power for jobs program,” (emphasis added). They emphasized that the Legislature did not refer only to the last year a participant had a contract with NYPA, but instead specifically tied the rebate to prices paid in the last year of phase four or five of the PFJ program.

Although the legislation is certainly not a model of clarity, we agree with the Appellate Division that the statutory directive that rebates be calculated based on the final year of PFJ phase four or five precludes NYPA’s reliance on 2006 contract prices. The initial three years of the PFJ program were referred to as phases one, two and three (see Economic Development Law § 189 [e] [1]). When it continued the PFJ program in 2000 and again in 2002, the Legislature characterized the contract extensions as phases four (see Economic Development Law § 189 [e] [2], as added by L 2000, ch 63, part KK, § 4) and five (see Economic Development Law § 189 [e] [3], as added by L 2002, ch 226, § 5), respectively. But when the Legislature extended and amended the program after 2002, it did not denominate new “phases.” Thus, the last phases identified in the statutory scheme are phases four and five, which have the same sunset date—December 31, 2005. Since the rebate calculation provision states that the baseline contract costs will be those “paid during the final year of the contract . . . under phase four or five of the power for jobs program,” and phases four and five terminated at the end of 2005, the baseline year for purposes of calculation of the rebate is, at the latest, 2005. It follows that NYPA was required to compare the costs paid by Rebate Program participants that purchased from local providers against the costs those participants had paid in the last year of their contracts under phases four and five, which for most participants—including petitioners—was 2005.

Not only is this interpretation consistent with the plain designation chosen by the Legislature but it also comports with the history of the 2006 amendments. Since that legislation was motivated, in part, by a desire to ameliorate the high prices NYPA had charged under the contracts in the winter of 2006, it is no surprise that the Legislature sought to ensure that the more reasonable prices paid the year before would be the baseline for calculating rebates. This was a complement to the flexibility the legislation gave manufacturers in determining whether to continue to purchase power from NYPA under PFJ contracts or to join the Rebate Program.

NYPA contends that this is a “strange reading” of the language and asserts that the statutory reference to phases four and five made sense in 2004 when the Rebate Program was initially introduced because the Legislature believed that the PFJ program would cease at the conclusion of phase five. NYPA therefore believes that the Legislature “overlooked” or forgot to delete the reference to phases four and five in the first paragraph of section 189 (a) (5) when it extended the Rebate Program in 2006. Essentially, NYPA asks us either to ignore the “phase four or five” language or to consider the subsequent contract extensions as the equivalent of phase extensions, even though the Legislature did not characterize them in this fashion (as it had in previous amendments).

We cannot rule out the possibility that the Legislature’s failure to delete the references to phases four and five from the first paragraph of Economic Development Law § 189 (a) (5) was merely an oversight—but there is no indication in the Bill Jacket that the Legislature intended the baseline year for purposes of the rebate calculation to be 2006. Rather, there is a sound basis to draw the contrary conclusion. Whatever the intended purpose, the fact remains that the Legislature did not alter the rebate calculation methodology when it adopted the 2006 amendments—to the contrary, it added language expressly providing that rebates would be calculated pursuant to the preexisting formula. As a result, petitioners were entitled to have rebates calculated based on the rates charged under phases four and five of the program as directed in Economic Development Law § 189 (a) (5).

Because NYPA erred when it required these manufacturers to choose between the Restitution Benefit and the Rebate Program and announced that their rebates would be calculated based on 2006 PFJ contract prices, those aspects of its determination were properly annulled.

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

Read, J. (dissenting in part).

When the Legislature continued the Power for Jobs (PFJ) program in 2004, it created the new rebate benefit described in the majority opinion. Eligible participants were given a choice to extend their power contracts with the New York Power Authority (NYPA) or, alternatively, to opt out of the PFJ program and receive the rebate, calculated in accordance with a formula in the statute (see Economic Development Law § 189 [a] [5], as added by L 2004, ch 59, part T, § 3). When the Legislature again extended the PFJ program in 2005, eligible participants were afforded the same choice (see id., as amended by L 2005, ch 59, part I] § 2).

In 2006, the Legislature continued the PFJ program for another six months and created one option for all PFJ customers and a second option only available to manufacturers; specifically, (1) customers electing a contract extension became eligible to receive a newly created restitution benefit described in the majority opinion; and (2) manufacturers could cancel their contracts and receive the same type of rebate benefit made available by the 2004 and 2005 amendments (see id., as amended by L 2006, ch 645, § 3 [hereafter 2006 amendments or the statute]). The Legislature did not amend the formula for calculating the rebate.

The majority concludes that PFJ customers that are manufacturers, like petitioners, qualify under the 2006 amendments for both the restitution and the rebate benefits; and that the baseline for calculating rebates is, at the latest, 2005. Although I agree with the majority that petitioners were not required to elect between the restitution and rebate benefits, I conclude that the baseline for calculating the rebate is the year preceding contract cancellation.

The formula for calculating the rebate measures the former PFJ customer’s power costs against “thé average unit cost of electricity [it] paid during the final year of the contract for power allocated under phase four or five of the power for jobs program” (Economic Development Law § 189 [a] [5]). Economic Development Law § 189 (e) (2) and (3) state—and the majority emphasizes—that delivery of power under phases four and five ends “on or before December thirty-first, two thousand five.” Critically, however, other sections of the statute—which the majority does not mention—demonstrate that the Legislature, in fact, extended delivery of “power allocated under phase four or five” beyond that date. For example, the 2006 amendments provided that “the term of contracts for allocations under the fifth phase of the program shall in no case extend beyond June thirtieth, two thousand seven” (Economic Development Law § 189 [f], as amended by L 2006, ch 645, § 4 [emphasis added]). Thus, if a manufacturer withdraws its contract extension in order to take advantage of the rebate, “the final year of the contract for power allocated under phase four or five” is the year preceding contract cancellation.

This interpretation is consistent with the purpose of the rebate, and the way in which NYPA has administered it since 2004. The rebate was intended to guarantee that NYPA’s former PFJ customers would not pay more for electricity than they spent in their last year in the program. And, of course, a former customer might pay less if able to secure a better price in the open market from a non-NYPA energy supplier. The rebate option thus afforded former PFJ customers a stable, predictable (maximum) price.

Concluding that “the baseline year for purposes of calculation of the rebate is, at the latest, 2005,” the majority states that this is “no surprise” because the 2006 amendments were “motivated, in part, by a desire to ameliorate the high prices NYPA had charged under the contracts in the winter of 2006” (majority op at 234). This conclusion is contrary to the statutory language, as noted above. Moreover, the record demonstrates only that some PFJ participants were paying more than they would have paid their local utilities in the unusually warm winter of 2006 (Letter of Senator Wright, Bill Jacket, L 2006, ch 645, at 4).

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

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

      . Petitioners have not cross-appealed and have abandoned any claim relating to the timing of restitution payments.

      . The phases are defined in Economic Development Law § 189 (e). Section 189 (e) (2) states: “phase four shall begin no sooner than [January 1, 2001] and shall end on or before [December 31, 2005]” and section 189 (e) (3) directs: “phase five shall begin no sooner than [January 1, 2002] and shall end on or before [December 31, 2005].”

      . NYPA indicates that it has always used the rates paid in the final year of a PFJ contract when calculating rebates. But this practice extends back only to 2004 since that was the year the Rebate Program was created. For participants that joined the program in 2004 and 2005, NYPA’s use of the prices from the last year of the contracts—prices from 2003, 2004 and portions of 2005—was consistent with the phase four and five terminology in the statute since those phases did not terminate until the end of 2005. It was not until it issued its November 2006 determination stating that rebates would be calculated based on 2006 prices that NYPA ran afoul of the statutory directive. Petitioners, along with other similarly-situated PFJ participants, immediately objected to NYPA’s interpretation and this litigation ensued within four months. Hence, this is not a case where an agency’s long-standing and broadly-accepted interpretation of a statute is being disturbed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    [918 NE2d 116, 889 NYS2d 526]
    In the Matter of Joseph S. Alessandro, a Justice of the Supreme Court, Westchester County, Petitioner. State Commission on Judicial Conduct, Respondent. In the Matter of Francis M. Alessandro, a Judge of the New York City Civil Court, Bronx County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued September 9, 2009;
    decided October 20, 2009

      POINTS OF COUNSEL

      DerOhannesian & DerOhannesian, Albany (Paul DerOhannesian II and Jennifer C. Zegarelli of counsel), for petitioner in the first above-entitled matter.
    I. Joseph S. Alessandro testified before the Commission to the best of his recollection and based on miscommunications with his brother. (Matter of Rambarran, 308 AD2d 53; Matter of Kiley, 74 NY2d 364; Matter of Skinner, 91 NY2d 142.) II. The complainant Barbara Battista suffered no loss but rather used the legal judicial monitoring system to collect more than she was entitled to. (Matter of Kelso, 61 NY2d 82.) III. The context of the charges against Joseph S. Alessandro is not “truly egregious.” (Matter of Edwards, 67 NY2d 153; Matter of Kelso, 61 NY2d 82; Matter of Steinberg, 51 NY2d 74.)

      Edward Lindner, New York City, Robert H. Tembeckjian and Melissa DiPalo for respondent in the first above-entitled matter.
    I. Petitioner committed egregious misconduct by failing to repay a loan as promised and contriving to delay repayment by procuring an affidavit under false pretenses and asserting that affidavit as grounds to dismiss Barbara Battista’s lawsuit to recover on the loan. (Matter of Heburn, 84 NY2d 168; Matter of Myers, 67 NY2d 550; Matter of Mason [State Commn. on Jud. Conduct], 100 NY2d 56; Matter of Going, 97 NY2d 121; Rosasco Creameries, Inc. v Cohen, 276 NY 274; Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124.) II. Petitioner’s misconduct is aggravated by his misleading and evasive testimony before the Commission on Judicial Conduct. (Matter of Mason [State Commn. on Jud. Conduct], 100 NY2d 56; Matter of Mogil, 88 NY2d 749; Matter of Kiley, 74 NY2d 364.) III. Petitioner intentionally failed to disclose the Battista mortgage on his financial disclosure statement. IV Petitioner submitted multiple loan applications containing false statements and omissions that were, or appeared to be, for improper purposes. (Gillman v Chase Manhattan Bank, 73 NY2d 1; Matter of Heburn, 84 NY2d 168; Matter of Bailey, 67 NY2d 61.) V. The appropriate sanction is removal. (Matter of Collazo [State Commn. on Jud. Conduct], 91 NY2d 251; Matter of Myers, 67 NY2d 550; Matter of Steinberg, 51 NY2d 74; Matter of Heburn, 84 NY2d 168; Matter of Mazzei, 81 NY2d 568; Matter of Boulanger, 61 NY2d 89.)

      Robert P. Roche, Albany, for petitioner in the second above-entitled matter.
    I. The Commission on Judicial Conduct determination is based on untruths and distorted misperceptions of what did and should have happened in this case. II. The case against Francis M. Alessandro does not rise to the benchmark for removal, which is an extreme remedy. III. The record before this Court does not support the extreme punitive result of removal from the bench of Francis M. Alessandro. (People v Termotto, 81 NY2d 1008; Matter of Edwards, 67 NY2d 153; Matter of Reedy, 64 NY2d 299; Matter of Cunningham, 57 NY2d 270; Matter of Bulger v State Commn. on Jud. Conduct, 48 NY2d 32; Matter of Schamel, 46 AD2d 236; Matter of Spector v State Commn. on Jud. Conduct, 47 NY2d 462; Matter of LaBelle, 79 NY2d 350; Matter of Lenney, 70 NY2d 863.)

      Edward Lindner, New York City, Robert H. Tembeckjian and Melissa DiPalo for respondent in the second above-entitled matter.
    I. Petitioner filed financial disclosure statements that were incomplete and inaccurate, and intentionally omitted the Battista mortgage. II. Petitioner submitted multiple loan applications containing false statements and omissions that were, or appeared to be, for improper purposes. (Gillman v Chase Manhattan Bank, 73 NY2d 1; Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300.) III. Petitioner’s principal arguments to this Court are unpreserved and entirely contradicted by the hearing record. (People v Baumann & Sons Buses, Inc., 6 NY3d 404.) IV Petitioner has committed egregious misconduct and should be removed from office. (Matter of Mazzei, 81 NY2d 568; Matter of Collazo [State Commn. on Jud. Conduct], 91 NY2d 251; Matter of Myers, 67 NY2d 550; Matter of Steinberg, 51 NY2d 74; Matter of Heburn, 84 NY2d 168.)
   OPINION OF THE COURT

Per Curiam.

We are called upon to review determinations of the State Commission on Judicial Conduct removing from office Joseph Alessandro, a Justice of the Supreme Court, Westchester County, and his brother Francis Alessandro, a Judge of the New York City Civil Court, Bronx County, for alleged acts of judicial misconduct. Both brothers admit misconduct, but challenge the sanction as too severe. Upon exercise of our de novo review powers, we conclude that removal is the appropriate sanction for Joseph Alessandro, but we reject the sanction of removal imposed for Francis Alessandro and determine that the appropriate sanction is admonition.

I. Joseph Alessandro

In February 2007, the Commission served a complaint upon Joseph Alessandro containing four charges of misconduct. The charges alleged that he attempted to defraud an individual out of a $250,000 loan and/or failed to repay the loan; gave false testimony during the Commission investigation; filed a materially incomplete financial disclosure statement with the Ethics Commission for the Unified Court System (Ethics Commission); and submitted loan applications that omitted various assets and liabilities.

A referee conducted a joint hearing in the proceedings against Joseph and Francis Alessandro. The referee sustained all four charges against Joseph, and the matter proceeded to oral argument before the Commission. In its February 2009 determination, the Commission concluded that Joseph should be removed from office.

A. Battista Loan

Joseph Alessandro, an attorney with more than 30 years of experience in private practice, entered the race for Westchester County Court Judge in 2003. Salvatore LoBreglio, the director of the Westchester Independence Party, suggested that Barbara Battista serve as Joseph’s campaign manager and treasurer. Battista, a retired nurse, had some experience working on election campaigns. Previously, Joseph had paid Battista to prepare his (ultimately unsuccessful) application for an interim appointment to County Court.

In August 2003, Battista proposed that Joseph undertake a massive mailing of campaign literature. Joseph had already contributed more than $140,000 of his personal funds to the campaign, and told Battista that he was not prepared to spend additional money. Battista then offered to lend Joseph $250,000. According to Battista, she “made it very clear that there had to be an end date for it to be paid back.” Joseph accepted, and the parties orally agreed that Joseph would repay the loan by July 2004. Between late August and mid-September 2003, using money borrowed against her retirement funds in a brokerage account, Battista paid a print company $185,000 toward the cost of Joseph’s campaign literature, and paid an additional $57,000 into Joseph’s campaign account.

Joseph and Francis Alessandro co-signed a handwritten note reflecting Joseph’s $250,000 indebtedness to Battista. Dated August 31, 2003, the note provided a fixed annual interest rate of 1.5% and a term of 30 days, with the principal due and payable on September “31,” 2003. To secure the note, the brothers co-signed a handwritten mortgage on their jointly-owned property in Valhalla, New York. Battista did not record the handwritten mortgage at that time.

Soon thereafter, campaign attorney John Ciampoli informed Joseph, Battista and LoBreglio that Battista’s payments to the print company and the campaign account would violate statutory campaign contribution limits if not repaid by Election Day. Ciampoli therefore advised Joseph to assume the campaign’s debt to Battista personally. As a consequence, Joseph and Battista signed a typewritten promissory note, dated November 3, 2003, which acknowledged the $250,000 indebtedness. The note provided for a 15-year term and a variable interest rate, equal to the interest rate charged by Battista’s brokerage account, that was initially set at 2.86%. Joseph also signed a typewritten mortgage, dated October 23, 2003, which secured the loan with the brothers’ jointly-owned Valhalla property. Francis did not sign either the typewritten note or the typewritten mortgage. Battista recorded the typewritten mortgage on November 5, 2003.

Joseph was elected to County Court in November 2003. For the next year, he made interest payments to Battista as required by the typewritten promissory note. In the spring and summer of 2004, Battista inquired about repayment of the loan. Joseph repeatedly assured her that he was attempting to secure financing to repay her. In September 2004, Joseph told Battista that he had a “mortgage guy” working to obtain a loan, and showed her a document that appeared to be an unsigned mortgage application or commitment. Meanwhile, in June 2004, Joseph and Francis had paid more than $300,000 in cash to purchase property in Seaside Heights, New Jersey. They obtained the money by taking a loan against a joint brokerage account. There is no documentary evidence or testimony of an impartial witness to support Joseph’s claim that he was trying to repay the Battista loan.

In October 2004, Battista enlisted attorney Harvey Kaminsky to help her recover the loan. According to Kaminsky, Battista told him that “she felt she was getting the runaround, and . . . she sort of felt intimidated calling the judge because she was calling him in his chambers saying she needed the money.” Kaminsky contacted Joseph, who acknowledged the debt, and said that he had applied for a mortgage on a property he owned in New Jersey and expected to have the money within a few weeks. At Kaminsky’s request, Joseph sent Kaminsky copies of unsigned mortgage applications he had completed.

Later that month, Joseph told Kaminsky that, in order to obtain financing, he needed a document indicating that he was current on the interest payments due on the mortgage Battista held on the Valhalla property. Although Kaminsky “didn’t quite understand why it was important for a New Jersey piece of property that was being put up for refinancing,” he promptly obtained the letter from Battista and faxed it to Joseph.

Soon thereafter, Joseph informed Kaminsky that “his title company was troubled by the two mortgages” on the Valhalla property. As a result, Joseph claimed, he needed a document clarifying that the typewritten mortgage was the only mortgage on the Valhalla property and that the handwritten mortgage was “null and void since it was unrecorded.” Kaminsky told Joseph that his request created a difficult situation because he believed that the handwritten mortgage afforded Battista more protection. Joseph replied that “unless we got rid of the first mortgage, he could not get the loan.” Kaminsky subsequently prepared for Battista’s signature an affidavit stating that the typewritten mortgage replaced the handwritten mortgage.

Kaminsky called Joseph after sending him the signed affidavit, at which point Joseph told Kaminsky to speak to his attorney, Edward Koester. Ultimately, Kaminsky referred Battista to another attorney for potential litigation against Joseph.

In January 2005, Battista recorded the handwritten mortgage, thereby creating a $500,000 lien against the Valhalla property. In February 2005, she commenced an action against Joseph and Francis to foreclose on the handwritten mortgage. Joseph moved to dismiss the complaint, relying on the affidavit in which Battista stated that the 15-year typewritten mortgage (not yet due on its face) “replaced” the handwritten mortgage. When the motion to dismiss was denied, Joseph filed a verified answer denying that he and Francis owed Battista $250,000 under the handwritten note and mortgage. In February 2006, Joseph, Francis and Battista settled the lawsuit for $273,000 ($250,000 plus $23,000 in attorneys’ fees).

B. Testimony before the Commission

Joseph testified before the Commission on Judicial Conduct during its investigation. In September 2005, Commission counsel asked Joseph to identify the lender that requested information about mortgages on the Valhalla property. He answered, “I don’t recall which bank it was with. I think it was GreenPoint.” When asked the same question during his December 2005 appearance before the Commission, Joseph stated, “I don’t know which one, but I guess it was GreenPoint or whatever.” Commission counsel reminded Joseph of his previous testimony that a GreenPoint underwriter requested this information; he responded, “Okay, then that’s who it was then.”

Later during the December 2005 appearance, Commission counsel told Joseph that the GreenPoint underwriter assigned to his loan application denied speaking to him. Joseph replied, “I guess then the underwriter was Global [Equity] or the broker was Global.” When Commission counsel represented that the Global loan originator also denied speaking to Joseph, he testified: “If he said he had no conversation with me, obviously, I had no conversation with him, but I did have a conversation with somebody pertaining to this information from one of these mortgage companies.” But in June 2007, Joseph testified before the referee that he discussed the mortgage on the Valhalla property not with GreenPoint or Global Equity, but rather with his attorney, Edward Koester, “or one of the banks he was working with.” Koester testified before the referee that he had asked Joseph for a letter from Battista stating the amount of the obligation and “payment history,” but did not say that he had asked for or received the particular documents Battista furnished.

C. Financial Disclosure Statements

On April 14, 2005, Joseph filed a financial disclosure statement for calendar year 2004 with the Ethics Commission. He failed to disclose the following liabilities: (1) the mortgage Battista held against the Valhalla property; (2) a mortgage held by GreenPoint against a Bronx property he jointly owned with Francis; and (3) a mortgage held by Countrywide against another Bronx property he owned individually. In September 2005, after testifying before the Commission, Joseph filed an amended disclosure statement that included these mortgages.

Before the referee, Joseph testified that he failed to disclose the Battista mortgage because he merely “copied” from his brother Francis’ financial disclosure statement, which did not list that mortgage. He further testified that he did not disclose the Battista mortgage because he believed he would obtain a mortgage and repay Battista.

D. Loan Applications

In 2004, Joseph submitted five loan applications to Global Equity Funding, three of which were submitted jointly with Francis. Both Joseph and Francis spoke to the mortgage broker, who returned the applications for signature to Francis. In turn, Francis gave the applications to Joseph to sign. None of the Global Equity applications listed Battista’s mortgage on the Valhalla property, a mortgage held by Countrywide on Joseph’s property in the Bronx, various properties owned individually by Joseph and various properties jointly owned by the brothers. On several applications, Joseph represented that he was not a comaker or endorser on a note.

In the summer of 2005, Joseph and Francis completed three loan applications with mortgage broker Moses Rambarran. All three loans were approved. Rambarran entered information provided by Joseph into a computer and then printed the applications. Joseph testified that he signed the applications without reading them. The applications did not disclose Joseph’s mortgage with Countrywide, various properties he owned individually, and other properties he owned jointly with Francis. Two of the applications omitted Battista’s mortgage on the Valhalla property; the third application, which sought refinancing of the Valhalla property, noted the $250,000 lien but did not name Battista. On all three applications processed by Rambarran, Joseph represented that he was not a co-maker or endorser on a note, although he was. On one application, he represented that he was not a party to a lawsuit, even though Battista had commenced the foreclosure action against him earlier that year.

Before the referee, Joseph testified that he did not list the Battista mortgage on the Global Equity loan applications because he “was under the impression that it would have shown up in [his] credit report.” He also indicated that he and Francis informed the mortgage brokers of all their assets and liabilities, but the brokers did not include some of this information in the loan applications.

II. Francis Alessandro

On February 19, 2007, the Commission served a complaint upon Francis Alessandro containing two charges of misconduct. The charges alleged that Francis filed materially incomplete financial disclosure statements with the Ethics Commission, and submitted loan applications to mortgage brokers that omitted various assets and liabilities. Following the joint hearing, the referee issued a report sustaining both charges, and the matter proceeded to oral argument before the Commission. In its determination dated February 11, 2009, the Commission concluded that Francis should be removed from office. One member of the Commission dissented as to the sanction and voted to censure Francis.

Francis has been a Judge of the New York City Civil Court, Bronx County, since 1990. Prior to becoming a judge, he engaged in the private practice of law with his brother, Joseph. Their practice included real estate law. Francis testified that he cosigned the handwritten note and mortgage in August 2003 “as an accommodation” to his brother. He believed the Battista loan was primarily Joseph’s responsibility, but acknowledged that his signature made him an obligor on the note. Francis testified that he did not learn of the typewritten note and mortgage until early 2005, when Battista named him as a defendant in her foreclosure action.

A. Financial Disclosure Statements

On July 7, 2004, Francis filed a financial disclosure statement for calendar year 2003 with the Ethics Commission. He failed to disclose the following assets and liabilities: (1) the mortgage Battista held on the Valhalla property; (2) a mortgage held by GreenPoint on a Bronx property he jointly owned with Joseph; (3) his one-half interest in the Valhalla property; and (4) his one-half interest in a property in Pelham. Francis failed to disclose the same assets and liabilities on his financial disclosure statement for calendar year 2004. He testified that his failure to disclose the Battista mortgage was “negligent.” He also stated that he omitted the Battista mortgage because it was his “brother’s obligation” and it was an “unrecorded instrument.”

B. Loan Applications

As noted above, Francis and Joseph submitted three joint loan applications to Global Equity Funding in 2004 and, in 2005, they completed three loan applications with Moses Rambarran. The Global Equity applications failed to list the Battista mortgage, one property owned individually by Francis, and various properties he owned jointly with Joseph. Francis testified that he did not disclose the Battista mortgage on the Global Equity loan applications because it was “unrecorded.” Francis also represented in these applications that he was not a comaker or endorser on a note.

Similarly, the loan applications processed by Moses Rambarran did not list one property owned individually by Francis and several properties owned jointly by the brothers. Two of these applications contained no reference to the Battista mortgage; one application acknowledged the $250,000 lien on the Valhalla property, but did not identify Battista. On all three applications, Francis represented that he was not a co-maker or endorser on a note and that he was not a party to a lawsuit, even though Battista had named him as a defendant in her action to foreclose on the handwritten mortgage. Before the referee, Francis testified that he gave the mortgage brokers “all the information on the phone” and “relied on them doing what they had to do.”

III.

Based upon our independent review of the record, we conclude that Joseph Alessandro engaged in misconduct warranting removal from office. We have repeatedly emphasized that “deception is antithetical to the role of a Judge who is sworn to uphold the law and seek the truth” (Matter of Myers, 67 NY2d 550, 554 [1986]). Moreover, judges “are held to higher standards of conduct than the public at large” (Matter ofMazzei, 81 NY2d 568, 572 [1993]).

Joseph Alessandro accepted a $250,000 loan from his campaign manager and promised to repay her within a year. He failed to keep that promise and, more importantly, he strung Battista and her attorney along with repeated assurances that he would soon obtain financing to repay the loan. After he took judicial office, Joseph persuaded Kaminsky, Battista’s attorney, to procure an affidavit from her, downplaying the attorney’s misgivings that this might not serve his client’s best interest. And then Joseph later, in fact, used this affidavit against Battista in the foreclosure action she commenced to recover the loan. In this regard, we find it particularly troubling that Joseph gave changeable answers when asked to identify the bank that asked for information regarding Battista’s mortgage. His evasiveness creates a strong inference that he was dishonest in his dealings with Battista and her attorney with respect to the requested affidavit, and in his testimony in these proceedings.

We are mindful that “removal, the ultimate sanction, should not be imposed for misconduct that amounts simply to poor judgment or even extremely poor judgment, but should be reserved for truly egregious circumstances” (Matter of Mazzei, 81 NY2d at 572). Further, we recognize that Joseph’s inexperience as a political candidate in 2003 may have contributed to his decision to accept a problematic loan from his campaign manager in the first place. Nevertheless, having accepted the loan, he was required to meet this obligation with “the highest level of judicial honesty and integrity” (id.).

This high standard of conduct also required Joseph to provide truthful and complete information in his financial disclosure statement and mortgage applications. His failure to disclose the Battista mortgage in these documents is consistent with an ongoing pattern of shirking his obligation to repay her. Like the Commission, we therefore reject Joseph’s argument that these omissions should be attributed to mere carelessness.

IV

Upon our independent review of the record as to Francis Alessandro, we reduce his sanction to an admonition. To be sure, Francis’ failure to fully disclose his assets and liabilities in his 2003 and 2004 financial disclosure statements, as required by the Rules of the Chief Judge (22 NYCRR part 40), is a serious matter. As the Commission noted, the information provided on these forms is available to the public and, among other things, enables lawyers and litigants to determine whether to request a judge’s recusal. Judges must complete their financial disclosure forms with diligence, making every effort to provide complete and accurate information.

We are not convinced, however, that Francis deliberately omitted required information from his financial disclosure statements. There is no evidence in the record that Francis intentionally failed to disclose his one-half interest in two properties and a mortgage on a third property jointly owned with his brother. He had no apparent motive to do so, and even the Commission acknowledged that these omissions constituted “carelessness.” Francis’ failure to disclose the Battista loan presents a closer question; he attributed this omission to negligence, but also testified that he omitted this mortgage because it was his “brother’s obligation” and it was “unrecorded.” Nevertheless, we are unable to conclude by a preponderance of the evidence that any of the omissions was intentional. Careless omissions from a financial disclosure statement are not the type of “truly egregious” conduct that warrants removal from judicial office (Matter of Cunningham, 57 NY2d 270, 275 [1982]).

Likewise, we find that Francis’ omission of various assets and liabilities from loan applications reflects carelessness rather than deliberate concealment of material information. The Commission inferred that Francis misrepresented his financial situation to enhance his chances of qualifying for a loan, but this conclusion is undercut by the fact that he omitted far more in the way of assets than liabilities. We emphasize that judges should adhere to the highest standards of honesty and integrity in all matters; however, we are unwilling to remove a judge from office for completing loan applications in a sloppy fashion where there is no evidence of intent to deceive.

V

Accordingly, the determined sanction as to Joseph Alessandro should be accepted, without costs, and he should be removed from the office of Justice of the Supreme Court, Westchester County. The determined sanction as to Francis Alessandro should be rejected, without costs, and the sanction of admonition imposed.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in per curiam opinion; Chief Judge Lippman taking no part.

In Matter of Alessandro (State Commn. on Jud. Conduct)-. Determined sanction accepted, without costs, and Joseph S. Alessandro removed from the office of Justice of the Supreme Court, Westchester County.

In Matter of Alessandro (State Commn. on Jud. Conduct): Determined sanction rejected, without costs, and the sanction of admonition imposed.

      . These payments totaled $242,000. Battista says she also advanced $8,000 in cash to pay campaign expenses, but she does not have documents to support this claim.

      . The typewritten note and mortgage both indicated that Battista had delivered a satisfaction of indebtedness to the Committee to Elect Joseph Alessandro, and that the Committee had delivered an acknowledgment of indebtedness to Joseph Alessandro.


author: Read, J.

text:
    [918 NE2d 486, 889 NYS2d 890]
    The People of the State of New York, Respondent, v Quentin Abney, Appellant. The People of the State of New York, Respondent, v Gregory Allen, Appellant.
    Argued September 16, 2009;
    decided October 27, 2009

      FIND SIMILAR CASES ON WESTLAW®
    Database: NY-ORCS
    Query: expert /s eyewitness /3 reliability /5 identification & error /s harmless
    POINTS OF COUNSEL

      Shearman & Sterling LLP, New York City CBrian H. Polovoy, Karen S. Hart, Ashley W. Walker, of the District of Columbia bar, admitted pro hac vice, and Alexander J. Marcopoulos of counsel), and Legal Aid Society of New York, Criminal Appeals Bureau {Steven Banks and Richard Joselson of counsel) for appellant in the first above-entitled action.
    I. Under People v LeGrand (8 NY3d 449 [2007]), the trial court erred in denying admission of appellant’s well-proffered expert testimony on factors influencing the reliability of eyewitness identifications, when the prosecution presented only a single eyewitness identification as evidence against appellant and the proffered testimony was relevant and outside the ken of the average juror. (People v Lee, 96 NY2d 157; People v Young, 7 NY3d 40; People v Crimmins, 36 NY2d 230; Ronson v Commissioner of Correction of State of N.Y., 604 F2d 176; United States v Kohan, 806 F2d 18; People v Cronin, 60 NY2d 430; United States v Brownlee, 454 F3d 131; People v Brooks, 128 Misc 2d 608; Frye v United States, 293 F 1013; People v Williams, 14 Misc 3d 571.) II. The trial court erred in failing to grant a mistrial or set aside the verdict and by improperly instructing the jury after the prosecutor had knowingly submitted to the jury an extrinsic document, not properly admitted into evidence, which confused the jury and unfairly prejudiced appellant, denying him his right to a fair trial. (Parker v Gladden, 385 US 363; Eslaminia v White, 136 F3d 1234; Benjamin v Fischer, 248 F Supp 2d 251; People v Vizzini, 183 AD2d 302; Turner v Louisiana, 379 US 466; United States v Cunningham, 145 F3d 1385; United States v Camporeale, 515 F2d 184; United States ex rel. Owen v McMann, 435 F2d 813; Osborne v United States, 351 F2d 111; People v Sanders, 128 AD2d 480.) III. The trial court violated appellant’s constitutional rights and committed reversible error when it precluded the testimony of Craig Powell and Trina Moore without making a finding of willful misconduct, and where any prejudice to the prosecution could have been minimized by less severe measures. (People v Kello, 96 NY2d 740; People v Cuevas, 67 AD2d 219; People v Cruz, 50 AD3d 490; People v Evans, 289 AD2d 417; Taylor v Illinois, 484 US 400; Webb v Texas, 409 US 95; Chambers v Mississippi, 410 US 284; People v Foy, 32 NY2d 473; People v Robinson, 89 NY2d 648; People v Walker, 28 AD3d 1116.)

      Robert M. Morgenthau, District Attorney, New York City (Patrick J. Hynes and Mark Dwyer of counsel), for respondent in the first above-entitled action.
    I. The court properly ruled that the jurors could understand and evaluate the identification evidence without the aid of a psychology expert. (United States v Fulero, 498 F2d 748; United States v Langan, 263 F3d 613; People v LeGrand, 196 Misc 2d 179; People v Santiago, 2 Misc 3d 652; People v Kello, 96 NY2d 740; People v Russell, 71 NY2d 1016; People v Cobos, 57 NY2d 798; People v Young, 7 NY3d 40; People v Cronin, 60 NY2d 430; People v Wesley, 83 NY2d 417.) II. Justice Wetzel properly precluded Craig Powell and Trina Moore, who were not noticed alibi witnesses, from testifying that defendant was in Brooklyn at or very near the time of the crime. (People v Cuevas, 67 AD2d 219; People v Evans, 289 AD2d 417; People v Young, 41 AD3d 318; People v Doster, 13 AD3d 114; People v Walker, 265 AD2d 192; People v Williams, 238 AD2d 191, 92 NY2d 993; Taylor v Illinois, 484 US 400; Williams v Florida, 399 US 78; Noble v Kelly, 246 F3d 93; People v Harrison, 28 AD3d 581.) III. The school sign-in sheets for the period from March through June 2005 were properly received in evidence by stipulation, and the court properly declined to grant a mistrial. (People v Kello, 96 NY2d 740; Smith v Phillips, 455 US 209; Parker v Gladden, 385 US 363; People v McCaskell, 217 AD2d 527; People v Harris, 98 NY2d 452; People v Padro, 75 NY2d 820; People v Lev, 33 AD3d 362; People v Hodge, 64 AD2d 535; United States v Harvey, 991 F2d 981.)

      Weil, Gotshal & Manges LLP, Houston, Texas (Matthew J. Antonelli of counsel), Weil, Gotshal & Manges LLP, New York City (Peter Sandel of counsel), Barry C. Scheck, Peter J. Neufeld, David Loftis and Ezekiel R. Edwards for Innocence Project, Inc., amicus curiae, in the first above-entitled action.
    I. The Court should reject the corroboration exception of People v LeGrand (8 NY3d 449 [2007]). (Holmes v South Carolina, 547 US 319; Crane v Kentucky, 476 US 683.) II. Excluding expert testimony about the pitfalls of eyewitness evidence because of the existence of corroboration poses a grave risk of wrongfully convicting the innocent. (People v LeGrand, 8 NY3d 449; United States v Brownlee, 454 F3d 131; United States v Downing, 753 F2d 1224; United States v Smith, 736 F2d 1103; United States v Wade, 388 US 218; Watkins v Sowders, 449 US 341; People v

      Lee, 96 NY2d 157.) III. Even under the corroboration standard of People v LeGrand (8 NY3d 449 [2007]) the evidence presented was insufficient to exclude expert testimony regarding the reliability of eyewitness identifications. (People v Lee, 96 NY2d 157; People v Young, 7 NY3d 40.)

      Legal Aid Society, Criminal Appeals Bureau, New York City (Karen M. Kalikow and Steven Banks of counsel), for appellant in the second above-entitled action.
    I. The court abused its discretion and denied Gregory Allen’s rights to due process, to present a defense and to a fair trial when it summarily denied counsel’s request to present evidence from a qualified expert on the factors affecting the reliability of eyewitness identification where the case turned on the accuracy of eyewitness identifications, and there was little or no corroborating evidence connecting Mr. Allen to the crime. (Chambers v Mississippi, 410 US 284; United States v Valenzuela-Bernal, 458 US 858; Taylor v Illinois, 484 US 400; Pennsylvania v Ritchie, 480 US 39; Washington v Texas, 388 US 14; People v LeGrand, 8 NY3d 449; People v Young, 7 NY3d 40; People v Lee, 96 NY2d 157; Frye v United States, 293 F 1013; People v Collins, 60 NY2d 214.) II. The jacket and Gregory Allen’s pretrial statements should have been suppressed as the fruits of an illegal arrest, where the warrant-less entry of the parole officer into Mr. Allen’s home to deliver him to the police waiting in the hallway and Mr. Allen’s warrantless arrest were not justified by consent or exigent circumstances. (Payton v New York, 445 US 573; People v Calhoun, 49 NY2d 398; Mincey v Arizona, 437 US 385; People v Knapp, 52 NY2d 689; People v Levan, 62 NY2d 139; People v Huntley, 43 NY2d 175; People v Bratton, 8 NY3d 637; People v Ray, 65 NY2d 282; People v Mackie, 77 AD2d 778; People v Candelaria, 63 AD2d 85.) III. The trial court erroneously ruled that Gregory Allen had not established a prima facie case of purposeful discrimination under Batson v Kentucky (476 US 79 [1986]), where the prosecutor challenged 60% of potential African-American jurors, but just 25% of non-African-Americans and defense counsel supplemented this numeric evidence by pointing out that at least one of the jurors excused had a pro-prosecution background. (People v Bolling, 79 NY2d 317; People v Kern, 75 NY2d 638, 498 US 824; People v Smocum, 99 NY2d 418; People v Chambers, 80 NY2d 519; People v Jenkins, 75 NY2d 550; Hernandez v New York, 500 US 352; People v Childress, 81 NY2d 263; Johnson v California, 545 US 162; Truesdale v Sabourin, 427 F Supp 2d 451; People v Hawthorne, 80 NY2d 873.)

      Richard A. Brown, District Attorney, Kew Gardens (Daniel Bresnahan and John M. Castellano of counsel), for respondent in the second above-entitled action.
    I. The Appellate Division properly found that the trial court appropriately exercised its discretion in denying the admission of defendant’s proposed eyewitness identification expert. (People v LeGrand, 8 NY3d 449; People v Young, 7 NY3d 40; People v Lee, 96 NY2d 157; People v Tas, 51 NY2d 915; People v Gissendanner, 48 NY2d 543; People v Rodriguez, 79 NY2d 445; People v Benzinger, 36 NY2d 29; People v Kinchen, 60 NY2d 772; United States v Haynes, 172 F3d 54; People v Williams, 14 Misc 3d 571.) II. The hearing court properly denied defendant’s Payton claim. (People v Charleston, 54 NY2d 622; People v Williams, 181 AD2d 503; People v Maldonado, 86 NY2d 631; People v Bigelow, 66 NY2d 417; Payton v New York, 445 US 573; People v Huntley, 43 NY2d 175; United States ex rel. Santos v New York State Bd. of Parole, 441 F2d 1216; People v Hale, 242 AD2d 112; Griffin v Wisconsin, 483 US 868; Morrissey v Brewer, 408 US 471.) III. The trial court correctly denied defendant’s Batson challenge since defendant did not establish a prima facie case of purposeful discrimination. (Batson v Kentucky, 476 US 79; People v Childress, 81 NY2d 263; People v James, 99 NY2d 264; People v Payne, 88 NY2d 172; People v Stephens, 84 NY2d 990; People v Richardson, 100 NY2d 847; J. E. B. v Alabama ex rel. T. B., 511 US 127; People v Bolling, 79 NY2d 317; People v Kern, 75 NY2d 638, 498 US 824; People v Jenkins, 75 NY2d 550.)
   OPINION OF THE COURT

Read, J.

Defendants in both of these cases unsuccessfully sought to introduce expert testimony on the reliability of eyewitness identification. The question for us to decide is whether, in light of our decisions in People v Lee (96 NY2d 157 [2001]), People v Young (7 NY3d 40 [2006]) and, especially, People v LeGrand (8 NY3d 449 [2007]), the trial courts abused their discretion when they disallowed this testimony. We conclude that the trial judge in Abney abused his discretion, but that the trial judge in Allen did not.

I.

Abney

A. Facts and Trial

On June 2, 2005 at about 3:20 p.m., 13-year-old Farhana U., on her way home from school, was descending well-lit stairs into the subway station near the corner of Essex and Delancey Streets in Manhattan when a man whom she did not know approached her and asked for “some change.” This man stood face-to-face with Farhana, about two feet away. She initially did not think he intended to harm her and was not afraid. Looking him squarely in the face, she said she had no change.

After Farhana “took a couple of steps forward,” the stranger wheeled in front of her, placed a knife with a six-inch blade and “a big curve on the end” near her throat, and asked her “a couple of times” to hand over her necklace, a gold chain with a locket. As this man stood close by her, Farhana was “looking at his face”; she was “really scared” and “didn’t know what to do.” When Farhana refused his demand, screaming “No,” he ripped the chain off her neck, and fled up the stairs. This entire encounter was fleeting.

Farhana continued down the stairs into the subway station and reported the robbery to a token clerk. At about 4:30 p.m., Detective Samuel DeJesus interviewed her at his desk in the transit station house at Columbus Circle. According to Detective DeJesus, Farhana seemed frightened; she told him that she had been robbed at knifepoint by a stranger, a black man in his thirties who was over six feet tall, had “pinkish” lips, and wore a short-sleeved blue shirt and a blue bandana.

Farhana’s physical description of the robber and how he carried out the crime prompted Detective DeJesus to suspect defendant Quentin Abney: he was familiar with defendant on account of his arrest for an earlier subway-related robbery. Telling Farhana that he would be “right back,” the detective left his desk to put together an array of six photographs, including defendant’s. When he returned, he told Farhana that he “was going to show her a group of photos and, if she recognized anyone, to let [him] know which one and what number.” Pointing out defendant’s photograph, she responded, “that’s him, number six.”

On June 22, 2005, Detective Ernest Dorvil telephoned Farhana at her home to ask her to view a lineup. Upon arrival at the station house, she waited in an office with the door shut while the lineup was being put together. From the office, Farhana could not see defendant, who was in a “cell area” on the other side of the building, or any of the “fillers” selected to participate in the lineup. Once the lineup was assembled, Detective Dorvil escorted Farhana to the viewing room, where they were joined by another police officer and defendant’s attorney. She identified defendant, in position number four (there were six men in the lineup); Farhana was “sure” that he was the man who had asked her for change and then robbed her at knife-point.

Defendant was arrested and charged with one count of robbery in the first degree (Penal Law § 160.15 [3]). At the subsequent jury trial, Farhana testified on direct examination that the man who robbed her had a dark brown complexion, “puppy dog eyes,” and “pinkish-purplish lips”; she did not remember whether he was wearing anything over his head, but thought his shirt was blue. Defense counsel cross-examined Detective DeJesus about the details of Farhana’s initial description of the robber; Detective Dorvil about the lineup, eliciting testimony that he let Farhana know ahead of time that a suspect was included (which she contradicted, saying that the detective told her only that he wanted her to view “a couple of people”); and Farhana about the lineup and the appearance of the knife.

Defendant presented an alibi defense, contending that, at or around the time of the robbery, he was picking up his girlfriend Mary Nimmons’s daughter from preschool in Brooklyn and that, before and after doing this, he was at Nimmons’s home at 64 MacDougal Street in Brooklyn. His alibi witnesses were Nimmons (the mother of two children by defendant) and her sister and two cousins, and Carolyn Murphy, an assistant teacher at the preschool.

Murphy testified that, on June 2, 2005, defendant picked up Nimmons’s daughter. She claimed to recall the date because the very next day—June 3, 2005—Nimmons came to the school to obtain a copy of the sign-in sheet reflecting that fact. While Nimmons also initially testified that she got the sign-in sheet on June 3, she later professed to have picked it up at defendant’s request some time after his arrest on June 22, 2005. Murphy further testified that she was one of the employees responsible for making sure the sign-in sheets were filled out properly, and that the sheet was checked for accuracy every time it was signed.

On rebuttal, the parties stipulated that “the logbook [of sign-in sheets] from March through June [would] be entered into evidence and made available to the jury and [could] be referenced in the closing arguments.” In general, the sign-in sheets were filled in irregularly—some days children were signed in, but not signed out; and in some places where a signature appeared, no time was filled in. The sheet dated June 2, 2005 from the March-June logbook exhibit differed from the sheet dated June 2, 2005 admitted on defendant’s behalf. The former stated that defendant picked up Nimmons’s daughter at 3:04 p.m.; the latter pegged the time at 3:00 p.m.

The jury convicted defendant of first-degree robbery, and Supreme Court sentenced him as a persistent violent felony offender to a prison term of 20 years to life. He appealed.

B, Proffer of Expert Testimony

Before jury selection, defendant made a motion in limine to present expert testimony concerning “psychological factors of memory and perception that may affect the accuracy of eyewitness identifications.” Specifically, he sought to call Dr. Solomon M. Fulero, who would “educat[e] the jurors on many counterintuitive findings that bear directly on the reliability of the identification evidence in [the] case,” which were beyond the average juror’s ken. Defendant identified 15 such factors: stress, exposure time, color perception under monochromatic light, event violence, cross-racial accuracy, similarity of lineup fillers, lineup instructions, rate of memory loss, postevent information, the wording of questions posed to an eyewitness, unconscious transference to the crime scene of someone seen in another situation or context, the witness’s preexisting attitudes and expectations, simultaneous and sequential lineups, the lack of correlation of confidence and accuracy, and confidence malleability. He specifically noted that the robbery was brief, the victim was under stress, and a weapon was used.

Supreme Court denied the motion as premature, with leave to renew at the close of the People’s direct case. The trial judge observed that while he was aware that the People’s case hinged on the eyewitness testimony of the 13-year-old victim, “[a]t this [juncture], . . . [he], in the exercise of discretion, [did] not consider [the] case an appropriate one for an expert identification witness” for several reasons.

The trial judge reasoned that “[a]s a threshold matter,” defendant’s papers did not “appropriately narrow the scope of the expert’s proposed testimony,” which therefore threatened to turn into “a full-fledged seminar . . . which could lead to hours of academic discussion and speculation.” Second, the proffered testimony about how police investigative techniques might influence a lineup identification was not relevant because the victim had previously picked out a photograph from an array, and so must have realized that a suspect would be included in the lineup. Third, two of the proposed subjects of testimony— postevent information and unconscious transference—“[had] not passed the Frye test” in other courts. Fourth, evidence about simultaneous versus sequential lineups was “unmanageable in a trial setting,” because juries were “not experts on constitutional law and procedure and [could not] be educated about those topics during a trial.”

Finally, the trial judge commented that “jurors know that, as a matter of common sense, a person’s memory does fade as time passes.” In his view, “[mjany” of defendant’s concerns relative to the accuracy of Farhana’s eyewitness identification could be adequately addressed by tailoring cross-examination and the jury charge. He indicated that defendant was “free to renew his motion at the close of the People’s case, at which time he [should] narrow his proffer to the specific topics that he believes are relevant to the facts of this case.”

After the People rested, defendant did, in fact, renew his motion, proposing a more limited range of subjects to be covered. Specifically, he asked to elicit expert testimony about the effect of event stress, exposure time, event violence and weapon focus, cross-racial identification, and lineup instructions, in addition to a new topic, double blind lineups. Defendant pointed out specific circumstances of his case to which the proposed testimony would be relevant. While acknowledging the trial judge’s earlier ruling that witness confidence could be addressed through jury instructions, defendant specifically took exception to it.

The trial judge denied defendant’s renewed motion on the ground that “having had the benefit of the witness’ testimony,” there was “nothing unique about [the] case . . . presenting] issues that are beyond the ken of the ordinary juror.” In his view, the relevant issues had been explored adequately during cross-examination, and could be argued in summation and covered in the jury charge.

C. Appellate Division

The Appellate Division, with two Justices dissenting, affirmed the judgment of conviction and sentence. The court observed that LeGrand—where the People’s case rested on identifications made nearly seven years after the crime—did not mandate admission of Dr. Fulero’s testimony. The court commented that “[t]he unusual fact pattern presented in LeGrand raise[d] a genuine question as to whether that case’s rule . . . applie[d] in cases, like this one, where the circumstances create much less doubt about the reliability of the identification testimony” (People v Abney, 57 AD3d 35, 43 [1st Dept 2008]).

The Appellate Division saw no need to answer this question, however, because of significant evidence corroborating defendant’s guilt, such that “by the terms of the LeGrand rule itself, the exclusion of the proffered expert testimony was within Supreme Court’s discretion” (id.). This corroborative evidence was the testimony of defendant’s own witnesses (Nimmons and Murphy), which suggested that he sought to document an alibi long before he was arrested for the robbery. The court recognized that, because this testimony was not elicited before the close of the People’s direct case, Supreme Court might have erred in refusing to permit Dr. Fulero to testify. In the Appellate Division’s view, however, defendant’s alibi evidence ultimately rendered any such error harmless.

The two dissenting Justices concluded that the trial judge abused his discretion when he denied defendant’s renewed motion at a time when there was “not a scintilla” of evidence corroborating the eyewitness’s identification (id. at 49). In their view, he should have considered the four factors enumerated in LeGrand, which they thought were generally met in this case. They acknowledged that certain of the subjects that Dr. Fulero proposed to cover were not recognized by the courts as generally accepted within the relevant scientific community, but faulted the trial judge for summarily rejecting this evidence without first conducting a Frye hearing. A dissenting Justice subsequently granted defendant permission to appeal to us.

Allen

A. Facts and Trial

At around 3:30 p.m. on March 10, 2004, two masked men barged into a busy barbershop in Queens, located across from the Woodside Housing Project. The mask worn by one of the men, who wielded what appeared to be a knife, left exposed the top portion of his face from his top lip to above his eyebrows. His accomplice (who has never been apprehended) displayed a gun and stated, “This is a holdup.” The gunman grabbed Juan Almonte, one of the barbers, and pulled back the slide on his gun. He next struck the shop owner in the face with the gun; he chased down a barber who tried to escape to the basement, dragged him back, put a gun into his mouth, and rifled his pants pockets; he demanded money from another barber, who emptied his pockets of about $30 in tips.

The knife-wielding intruder asked Almonte for money, checked around his neck for a chain, tried to open an apparently locked drawer at his barber station, and then called out to the gunman, “It’s time to go.” The two robbers instructed everyone present to lie down on the floor. They fled the shop together, and someone called the police. This entire incident lasted only a few minutes.

Gabriel Bierd, a customer in the shop, quickly realized that the knife-wielding robber was defendant Gregory Allen, whom he encountered regularly in the neighborhood. Bierd had heard defendant’s speaking voice several times during the previous six months, and he recognized him from both his “[b]ody type” and his voice.

When Sergeant Ronald Buell arrived at the barbershop to investigate the robbery, Bierd provided him with defendant’s nicknames—“Junior” and “J.R.”—and described him as a black male, about five feet, eight inches or five feet, nine inches tall. Bierd accompanied Sergeant Buell to the squad house, and looked through a “photo mug book” with 180 photographs, one to a page. Pedigree information was covered up. He picked out defendant’s photograph (at page 64), identifying him as the knife-wielding robber. At Sergeant Buell’s instruction, though, he looked through the remainder of the book. Buell then prepared a photographic array with six photographs, and Bierd selected defendant’s. Sergeant Buell drove to the barbershop and showed this photographic array to Almonte, who likewise identified defendant as the knife-wielding robber.

Defendant was arrested at about 10:30 p.m. on the day of the robbery. He was charged with four counts of robbery in the first degree (Penal Law § 160.15 [3], [4]), two counts of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [3], [4]), two counts of robbery in the second degree (Penal Law § 160.10 [1]), and three counts of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1], [2] [a]).

At defendant’s trial, Bierd and Almonte recounted the robbery, and explained how they immediately recognized defendant as the knife-wielding robber. They testified to having picked defendant out in a lineup on July 7, 2004; they identified him in court.

Detective David Beutel testified that he arrested defendant on March 10, 2004 and, when he asked him his name, defendant replied that his nicknames were “Junior” and “J.R.” Detective Beutel attempted to put together a lineup the next day, but defendant would not cooperate; he pulled his shirt over his head, got into the fetal position on a table, and refused to sit and hold up a number unless all the men in the lineup wore masks. Pursuant to court order, Detective Beutel finally organized a lineup on July 7, 2004, four months later. Bierd, Almonte and the barbershop’s owner each viewed the lineup separately. Bierd and Almonte identified defendant as the knife-wielding robber; the shop owner did not recognize anyone.

Defendant called five defense witnesses. An investigator with the Legal Aid Society recounted her interview with Almonte, stating that he told her that he could see the skin around the knife-wielding robber’s eyes and the bridge of his nose, and that his mask did not have a hole for the nose. Another investigator testified that he was present at the lineup on July 7, 2004, and that defendant’s attorney asked for all the lineup participants to wear ski masks; a police officer testified that he recovered six latent prints from the door of the barbershop; and a detective testified that none of those prints matched defendant’s. Finally, Danielle Allen, defendant’s sister, told the jury that her brother had a scar on his nose as a result of a dog bite suffered in childhood, and that he had long had a scar on his cheek. Photographs showing these scars were admitted into evidence. Allen further explained that, at the time of the robbery, defendant was dating someone who lived in the Woodside Housing Project.

The jury convicted defendant of all the charges submitted to it (the trial judge dismissed three counts). On February 28, 2006, defendant was sentenced to concurrent, determinate prison terms of 15 years on each first-degree robbery conviction, 10 years on each attempted first-degree and second-degree robbery conviction, seven years on each attempted second-degree robbery conviction, and five years’ postrelease supervision. He appealed.

B. Proffer of Expert Testimony

On July 14, 2005, defendant moved in limine to admit the expert testimony of Professor Steven Penrod regarding 17 “psychological factors of memory and perception tbat may affect the accuracy of eyewitness identifications.” Attached to the motion was Dr. Penrod’s curriculum vitae, a list of his publications, and a document written by Dr. Penrod discussing many of the factors about which he proposed to testify, but not how these factors were relevant to the case. This document mentioned unconscious transference only once, describing this phenomenon as when “innocent persons seen in some other context can be mistakenly identified as having been seen at the crime or [where] a bystander at the scene is mistaken as the perpetrator.”

The People opposed the motion on the ground that defendant had not demonstrated that the ability to assess the accuracy of the eyewitnesses’ testimony was beyond the ken of the average juror, or that the psychological factors about which Dr. Penrod proposed to testify were relevant to this case, “particularly . . . where . . . defendant was known to one of the eyewitnesses [Bierd] after months of regular encounters.” Further, the People argued that this case was distinguishable from the one-eyewitness identification cases relied upon by defendant. Here, there were two eyewitnesses who corroborated each other, and there was additional corroborative evidence, including defendant’s refusal to participate in a lineup unless he and all the fillers wore masks. At the time, the People argued, defendant would have had no way to know that masks were involved in the robbery unless he was there when it took place.

Immediately before jury selection, defendant made additional arguments on the motion. According to defendant, the expert testimony would be “important” because the use of a gun made the robbery stressful, and Dr. Penrod would explain that high levels of stress could impair an identification. Additionally, Dr. Penrod would address “weapon focus,” and the concept that there is “not necessarily a correlation between certainty and accuracy” of an eyewitness identification, although the “general public . . . thinks there is.” Finally, defendant argued that Dr. Penrod’s testimony on the subject of “unconscious transference” was relevant because the eyewitnesses claimed that they had seen defendant in the neighborhood before, and thus it was possible that they identified defendant because “he’s the only one in the lineup that they’ve seen in the neighborhood.”

The trial judge denied the motion, finding that “this is not an area in which an expert is at all helpful” because the proposed testimony involved matters of

“common sense and life experience . . . [T]he jury knows the longer you look at something the easier it is to remember . . . , just like they know if a person is wearing a disguise, it makes it hard to recognize them. They don’t need an expert to testify to these things.”

He ruled that defendant should address the reliability of eyewitness identification during cross-examination and in summation.

After the People rested, defendant renewed his motion, reiterating his position that Dr. Penrod’s testimony regarding unconscious transference was relevant because “statistics show that people are much more likely to identify someone they’ve seen before.” The court denied the application, again deciding that the issue was a matter of common sense.

C. Appellate Division

The Appellate Division unanimously affirmed defendant’s judgment of conviction and sentence because “the facts . . . [were] sufficiently distinct from those of [LeGrand] that . . . Supreme Court did not err in denying the defendant’s request to adduce expert testimony regarding the reliability of eyewitness identification” (People v Allen, 53 AD3d 582, 584 [2d Dept 2008]). The court emphasized defendant’s confirmation that he used the nicknames given to the police by Bierd, and his knowledge that the robbers wore masks. Further, the court pointed out, two eyewitnesses identified defendant from a photographic array the day of the crime and then again, four months later, in a lineup; and one of the eyewitnesses had seen and heard defendant in the neighborhood regularly over a period of six months before the robbery. Defendant appealed, and a Judge of this Court granted his application for leave (12 NY3d 780 [2009]).

II.

In Lee, we held that expert testimony proffered on the issue of the reliability of eyewitness identification “is not admissible per se”; rather, “the decision whether to admit it rests in the sound discretion of the trial court” (96 NY2d at 160), which should be guided by “whether the proffered expert testimony would aid a lay jury in reaching a verdict” (id. at 162 [internal quotation marks omitted]). We also noted that although “jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror” (id.). And finally, we recognized that because “expert testimony of this nature may involve scientific theories and techniques, a trial court may need to determine whether [it] is generally accepted by the relevant scientific community” (id.).

Applying these principles to the facts in Lee, we “[could] not say the trial court’s denial of defendant’s motion [to introduce expert testimony regarding the reliability of eyewitness identification] constituted an abuse of discretion” (id. at 163). In reaching this conclusion, we observed that the trial judge entertained the defendant’s motion during the People’s case-in-chief, and so “was in a position to weigh the request against other relevant factors, such as the centrality of the identification issue and the existence of corroborating evidence” (id.). The crime in Lee was a carjacking, and the defendant was discovered driving the stolen vehicle, which corroborated the victim’s identification of him as the carjacker.

Next came our decision in Young. There we reiterated several of the key points we made in Lee: that the decision whether to admit or exclude expert evidence on the reliability of eyewitness identification lies within the bounds of the trial court’s discretion; in the exercise of this discretion, the trial court should consider whether “the expert [could] tell the jury something significant that jurors would not ordinarily be expected to know already” (Young, 7 NY3d at 45); and scientific studies of factors affecting the reliability of eyewitness identification are beyond the ken of the typical juror.

Calling the question a “close” one on the facts in Young (id. at 42), we nonetheless decided there was no abuse of discretion. Young was a home invasion case, and we commented that if the trial had “turned entirely on an uncorroborated eyewitness identification, it might well have been an abuse of discretion to deny the jury the benefit of [the expert’s] opinions” {id. at 45). As it was, though, two of the defendant’s female acquaintances were found to possess property stolen during the home invasion; neither of them could have been the robber (who was a male); and one of them said she got the property from the defendant. Under these circumstances, we considered it “reasonable” for the trial judge to decide that the eyewitness’s identification “was quite unlikely to be mistaken, and that [the expert’s] testimony would be an unnecessary distraction for the jury” {id. at 46).

We most recently considered the admissibility of expert testimony on the reliability of eyewitness identification in Le-Grand. There, we held that

“where [a] case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that .are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” {LeGrand, 8 NY3d at 452).

In LeGrand—unlike Lee and Young—there was no evidence other than eyewitness identifications to tie the defendant into the crime, the stabbing death of a livery cab driver in 1991. Further, the identifications on which the People’s case depended were made nearly seven years after the crime, and the defendant was not convicted until 2002. In light of these facts, we decided that the trial judge abused his discretion when he disallowed expert testimony on those three factors where the defense expert’s testimony at the Frye hearing “confirm[ed] that the principles upon which [he] based his conclusions [were] generally accepted by social scientists and psychologists working in the field” {id. at 458): the correlation between confidence and accuracy, the effect of postevent information, and confidence malleability.

Finally, we noted in LeGrand that

“[although the trend has been of late to more liberally admit such [expert] testimony—as recognized in Lee and Young—the admissibility of such evidence would also depend upon the existence of sufficient corroborating evidence to link defendant to the crime. In the event that sufficient corroborating evidence is found to exist, an exercise of discretion excluding eyewitness expert testimony would not be fatal to a jury verdict convicting defendant” {id. at 459).

Applying our precedents in this area to the facts in Abney and Allen, we reach different answers to the question of whether the trial judge abused his discretion. While it was reasonable for the trial judge to deny defendant’s pretrial motion in Abney as premature and overly broad, another outcome was called for when defendant renewed the motion at the close of the People’s direct case. By that point, it was clear that there was no evidence other than Farhana’s identification to connect defendant to the crime, and she did not describe him as possessing any unusual or distinctive features or physical characteristics.

Defendant asked to elicit testimony from Dr. Fulero, who is a qualified expert on the subject of eyewitness identification research findings, about the following topics: the effect of event stress, exposure time, event violence and weapon focus, cross-racial identification, lineup instructions, double-blind lineups, and witness confidence. All but two of these subjects—lineup instructions and double-blind lineups—seem relevant to Farhana’s identification of defendant, given the particular circumstances of the case. And as we stated in LeGrand, the principles related to witness confidence upon which Dr. Fulero proposed to testify are generally accepted within the relevant scientific community. They are also counterintuitive, which places them beyond the ken of the average juror.

Accordingly, the trial judge in Abney abused his discretion when he did not allow Dr. Fulero to testify on the subject of witness confidence. As for the remaining relevant proposed areas of expert testimony—the effect of event stress, exposure time, event violence and weapon focus, and cross-racial identification—the trial judge should have conducted a Frye hearing before making a decision on admissibility.

Finally, we do not consider the trial judge’s error in Abney to have been harmless. While defendant’s muddled alibi evidence was no doubt unhelpful to his cause with the jury, it is not overwhelmingly inculpatory either. And, of course, it is possible that defendant would not have pursued an alibi defense in the first place if Dr. Fulero had testified.

Contrariwise, we consider Allen to be more akin to Lee and Young. We are unwilling to second-guess the trial judge’s exercise of discretion in Allen because the case did not depend exclusively on Bierd’s eyewitness testimony—i.e., Allen is not a “case [that] turns on the accuracy of eyewitness identifications [where] there is little or no corroborating evidence connecting the defendant to the crime” (LeGrand, 8 NY3d at 452). Critically, Almonte independently identified defendant as the knife-wielding robber who searched him and stood nearby throughout the course of the robbery. And defendant was not a stranger to either Bierd or Almonte.

Defendants’ remaining arguments, to the extent preserved, are without merit.

Accordingly, in People v Abney, the order of the Appellate Division should be reversed and a new trial ordered; in People v Allen, the order of the Appellate Division should be affirmed.

Judges Ciparick, Graffeo, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

In People v Abney: Order reversed, etc.

In People v Allen: Order affirmed.

      . The trials in Abney and Allen were both completed after our decision in Lee, but before our decisions in Young and LeGrand, which elaborated on the principles announced in Lee.

      . We subsequently decided in LeGrand that studies about the potential effect of postevent information on the reliability of an eyewitness identification are, in fact, generally accepted as scientifically valid (8 NY3d at 458).