author: Jones, J.

text:
    [970 NE2d 404, 947 NYS2d 381]
    The People of the State of New York, Respondent, v Monroe B. Bussey, Appellant.
    Argued March 21, 2012;
    decided May 3, 2012

      POINTS OF COUNSEL

      Alex Smith, Middletown, for appellant.
    I. The submission of the twin counts of intentional murder and depraved indifference murder to the jury violated appellant’s rights to a fair trial and due process of law. (People v Baptiste, 51 AD3d 184; People v Suarez, 6 NY3d 202; People v Taylor, 15 NY3d 518; People v Little, 83 AD3d 1389; People v Feingold, 7 NY3d 288; People v Payne, 3 NY3d 266; People v Rollins, 51 AD3d 1279; Fernandez v Smith, 558 F Supp 2d 480; People v Timmons, 78 AD3d 1241; People v Joseph, 68 AD3d 1534.) II. The depraved indifference murder, felony murder, tampering and marijuana verdicts were based upon legally insufficient evidence, were not proved beyond a reasonable doubt, and the kidnapping conviction and predicate should have merged. (People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Reed, 40 NY2d 204; People v Carter, 63 NY2d 530; People v Suarez, 6 NY3d 202; People v Mancini, 7 NY3d 767; People v Campbell, 33 AD3d 716; People v Kibbe, 35 NY2d 407; People v Mills, 1 NY3d 269; People v Waldron, 17 Misc 3d 509.) III. The prosecutor’s repeated use of statements made by severed codefendants was impermissible hearsay and violated appellant’s rights to confrontation and due process under the United States and New York State Constitutions. (People v Roman, 212 AD2d 390; Crawford v Washington, 541 US 36; Davis v Washington, 547 US 813.) IV Prosecutorial misconduct in the summation deprived appellant of his rights to a fair trial and due process under the Federal and State Constitutions.

      Francis D. Phillips, II, District Attorney, Middletown (Andrew R. Kass and Lauren E. Grasso of counsel), for respondent.
    I. Defendant’s convictions are supported by legally sufficient evidence. (People v Sanchez, 98 NY2d 373; People v Russell, 34 AD3d 850, 8 NY3d 884; People v Pomie, 55 AD3d 630, 11 NY3d 899; People v Georgiou, 38 AD3d 155, 9 NY3d 844; People v Contes, 60 NY2d 620; People v Taylor, 94 NY2d 910; People v Norman, 85 NY2d 609; People v Rhodes, 49 AD3d 668; People v Romero, 7 NY3d 633; People v Joseph, 68 AD3d 1534.) II. Defendant’s due process challenge premised on the submission of the twin intentional and depraved indifference murder counts is unpreserved for appeal and, in any event, is without merit. (People v Suarez, 6 NY3d 202; People v Gray, 86 NY2d 10; People v Danielson, 40 AD3d 174; People v Carter, 40 AD3d 1310; Jones v Keane, 329 F3d 290, 540 US 1046; DiSimone v Phillips; 461 F3d 181; People v Gutierrez, 15 AD3d 502; People v Johnson, 67 AD3d 448; People v Page, 63 AD3d 506; Green v Abrams, 984 F2d 41.) III. Defendant’s claims that the trial court erroneously denied his request to charge that Stanford Boyd and Crystal French were accomplices as a matter of law are without merit. (Caminetti v United States, 242 US 470; United States v Florez, 447 F3d 145; United States v Zapata, 205 F3d 1327; United States v Riggi, 541 F3d 94; Smithwick v Walker, 758 F Supp 178; People v Jones, 73 NY2d 902; People v Vataj, 69 NY2d 985; People v Besser, 96 NY2d 136; People v Tucker, 72 NY2d 849; People v Basch, 36 NY2d 154.) IV Defendant’s claim that the prosecution’s use of statements made by codefendants during his cross-examination violated the rules against hearsay as well as his right to confrontation is, to a certain extent, unreviewable, and, in any event, is without merit. (People v Kinchen, 60 NY2d 772; People v Maher, 89 NY2d 318; People v Kass, 25 NY2d 123; People v Williams, 28 AD3d 1005; People v Green, 272 AD2d 341; People v Montgomery, 216 AD2d 332; People v Sealy, 167 AD2d 362; People v Grant, 186 AD2d 267; People v Melendez, 74 AD3d 629; People v Shelton, 31 AD3d 791.) V Defendant’s claim that the prosecution’s statements deprived him of his right to a fair trial is partially unpreserved for appeal and, in any event, is without merit. (Petrucelli v Coombe, 735 F2d 684; Daye v Attorney Gen. of State of N.Y., 696 F2d 186, 464 US 1048; People v Tardbania, 72 NY2d 852; People v James, 35 AD3d 189; People v Clark, 161 AD2d 367; People v Ashwal, 39 NY2d 105; People v Galloway, 54 NY2d 396; People v Williams, 37 AD3d 626; People v Stiff, 60 AD3d 1094; People v McHarris, 297 AD2d 824.)
   OPINION OF THE COURT

Jones, J.

On September 4, 2007, a young male victim was found dead in the Fallkill Creek located in the City of Poughkeepsie. He was lying naked with his body badly beaten and a blanket, secured with tape, wrapped around his head. Two days after the police confirmed the identity of the victim, an eyewitness reported that she had observed three men—later identified as defendant, Earl Bell and Michael Thomas—severely beat a young man, who was later identified as the victim, in the alley and backyard of Bell’s residence in the City of Newburgh.

On September 6th, the police executed a search warrant at Bell’s residence and recovered blood from the inside stairwell and walls that led to the second floor apartment. The police arrested defendant the next day. During a subsequent search, the police recovered, among other things, carpeting and molding from the trunk of his car. The testing of those items revealed the presence of defendant’s blood on the stairway and walls at Bell’s residence and the presence of the victim’s blood on the carpeting and molding of defendant’s car. Additionally, cell phone records and cell site information obtained from defendant’s, Bell’s and Thomas’s cellular phones showed that the three men were in contact with each other in the hours before the victim’s beating and that Bell was in the Poughkeepsie area at 11:32 p.m. on September 3rd.

Defendant, along with Bell and Thomas, was charged with, among other things, three counts of murder in the second degree (intentional, felony and depraved indifference) and kidnapping in the first degree. At trial, two witnesses—Bell’s neighbor and her friend—testified that they saw defendant, with other men, walk into Bell’s backyard and then heard sounds like someone was getting hit. They also heard the victim yelling and screaming, and identified defendant exiting the backyard after the yelling and screaming had ceased. They estimated that the beating lasted approximately 10 minutes or more. Two witnesses close to Bell—his wife and a close friend—testified that defendant and Thomas, in the presence of Bell, beat the victim for several minutes. Bell’s friend further testified that the three men removed the victim’s clothing, wrapped him in a blanket and drove off with the victim in defendant’s vehicle. He heard the victim struggling to breathe while wrapped in the blanket. Defendant testified that his codefendants beat the victim and he assisted them by transporting the victim in the trunk from his vehicle to a creek in Poughkeepsie—a distance of some 18 miles.

The expert medical testimony revealed that (1) the victim had vomited while the blanket was wrapped around his head and (2) he died from “Multiple blunt impact trauma to the head and torso.” The chief medical examiner also opined that the victim lived for an hour or two after he had aspirated the vomit.

At the close of trial, defendant moved to dismiss several charges. Defendant argued that, without knowing when the victim died, the evidence did not support a depraved indifference murder charge pursuant to People v Suarez (6 NY3d 202 [2005]). Defendant also argued for the dismissal of the felony murder and kidnapping charges because the alleged act of kidnapping, pursuant to the merger doctrine, was not a separate and distinct act from the acts alleged to constitute murder. The trial court denied defendant’s motion.

The jury acquitted defendant of intentional murder, but convicted him of, among other things, depraved indifference murder, felony murder and kidnapping in the first degree. The Appellate Division affirmed (82 AD3d 1002 [2011]). It concluded that the evidence was legally sufficient to support defendant’s conviction for depraved indifference murder. It also held the merger doctrine inapplicable to the felony murder and kidnapping convictions, concluding that “[t]he acts constituting the kidnapping were discrete” (id. at 1003). The court rejected defendant’s other contentions as either meritless or unpreserved. A Judge of this Court granted defendant leave to appeal. We modify, by reducing the conviction of depraved indifference murder to manslaughter in the second degree, and otherwise, affirm.

“A person is guilty of murder in the second degree when . . . [u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). Depraved indifference murder “is best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” (People v Feingold, 7 NY3d 288, 296 [2006]). The culpable mental state, contrasting it from the intent to take one’s life, is such that one is “recklessly indifferent, depravedly so, to whether” the injury to or death of another occurs (People v Gonzalez, 1 NY3d 464, 468 [2004]). “As the drafters of the Penal Law put it, depraved indifference murder is ‘extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness’ ” (People v Payne, 3 NY3d 266, 272 [2004]).

Here, the victim was beaten for approximately 10 minutes, or more, to the extent that he died eventually from “[mjultiple blunt impact trauma to the head and torso.” The People did not demonstrate that defendant evinced utter disregard for the victim’s life to the extent that he did not care whether the victim was killed. Although defendant was acquitted of intentional murder, the evidence tends to support the conclusion that he intended to harm the victim. Recklessness, an element present in both depraved indifference murder and second degree manslaughter, exists when a person “is aware of and consciously disregards a substantial and unjustifiable risk that [a] result [defined by statute] will occur” (Penal Law § 15.05 [3]). Here, the jury, in convicting defendant, concluded that he acted recklessly in causing the death of the victim. Because the evidence supports the conclusion that defendant was aware of and consciously disregarded the substantial and unjustified risk that his conduct could cause the death of the victim, reducing the depraved indifference murder conviction to manslaughter in the second degree is appropriate (see also People v Atkinson, 7 NY3d 765, 766-767 [2006]).

Pursuant to Penal Law § 135.25 (3), a person who abducts another person is guilty of kidnapping in the first degree when “[t]he person abducted dies during the abduction or before he is able to return or to be returned to safety.” Defendant contends that he should not be held criminally responsible for kidnapping in the first degree because the acts alleged to constitute kidnapping were merely incidental to and merged with the act of killing the victim.

The so-called merger doctrine “is intended to preclude conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them” (People v Cassidy, 40 NY2d 763, 767 [1976]). The doctrine arose out of “an aversion to prosecuting a defendant on a kidnapping charge in order to expose him to the heavier penalty,” where defendant was charged with kidnapping and the acts appeared to be no more than a rape or robbery (id. at 765). In Cassidy, the Court observed that the Legislature, in the 1967 Revision of the Penal Law, “took note of the underlying problem and enacted a provision specifically requiring that for kidnapping in the first degree the abduction must be ‘for a period of more than twelve hours’ ” (id. at 766 [the revision pertains to subdivision (2) of section 135.25]). The Cassidy Court, deciding whether the merger doctrine applied to kidnapping in the second degree (Penal Law § 135.20) reasoned that while “the 12-hour durational requirement of section 135.25 effectively renders application of the merger doctrine unnecessary with respect to prosecution on charges of kidnapping in the first degree,” the amendment, however, did not eliminate the merger doctrine’s application (id.).

Here, the merger doctrine does not come into play as the People demonstrated that the acts constituting kidnapping were separate and distinct from the prior acts which led to the victim’s death. The evidence reveals that defendant placed the victim in the trunk of his car and subsequently dumped the victim in a shallow creek approximately 18 miles away, after the beating of the victim occurred. An eyewitness testified that the victim was struggling to breathe prior to being placed in the trunk of the vehicle. The medical testimony explained that the victim died approximately one to two hours after he had vomited in the blanket wrapped around his head. Thus, sufficient evidence exists for the jury to have concluded that the victim was alive at the time he was taken and that he died before he was able to return or be returned to safety. The beating of the victim, and his subsequent death, were discrete and distinct acts separate from the taking of the victim and his asportation to the creek (see People v Black, 18 AD2d 719, 720 [2d Dept 1962] [the kidnapping occurred after the robbery; thus defendant was not “guilty of a single and inseparable act”]; see also People v Levy, 15 NY2d 159, 164, 164-165 [1965] [explaining that the kidnapping statute “literally embraced in its terms any restraint” and concluded that the Court must “limit the application of the kidnapping statute to ‘kidnapping’ in the conventional sense in which that term has now come to have acquired meaning”]). Therefore, the acts subsequent to the beating—namely, the asportation of the victim and his death during the asportation or prior to his return—support the separate convictions of kidnapping in the first degree and felony murder. Defendant’s remaining contentions, to the extent that they are properly raised on appeal and preserved for review, are meritless.

Accordingly, the order of the Appellate Division should be modified by reducing defendant’s conviction of depraved indifference murder in the second degree to manslaughter in the second degree and remitting to County Court for resentencing and, as so modified, affirmed.

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

Order modified, etc.

      . Codefendant Bell was tried separately and similarly convicted. Codefendant Thomas pleaded guilty.

      . “A person is guilty of manslaughter in the second degree when . . . [h]e recklessly causes the death of another person” (Penal Law § 125.15 [1]).

      . Prior to the 1967 Revision of the Penal Law, the Court, in People v Levy (15 NY2d 159 [1965]), reversed the defendant’s kidnapping conviction and dismissed the charge. The Court observed that the kidnapping statute broadly encompassed any confinement and “could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.” The Court concluded that “[i]t is unlikely that these restraints, sometimes accompanied by asportation, which are incidents to other crimes and have long been treated as integral parts of other crimes, were intended by the Legislature in framing its broad definition of kidnapping to constitute a separate crime of kidnapping” (id. at 164).

      . Penal Law § 135.25 (2) provides that a person is guilty of first degree kidnapping when “[h]e restrains the person abducted for a period of more than twelve hours with intent to,” among other things, injure or sexually abuse another or commit a felony.

      . “A person is guilty of kidnapping in the second degree when he abducts another person” (Penal Law § 135.20).


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [969 NE2d 765, 946 NYS2d 547]
    In the Matter of New York City Health and Hospitals Corporation, Respondent, v New York State Commission of Correction, Appellant.
    Argued March 19, 2012;
    decided May 8, 2012

      POINTS OF COUNSEL

      Eric T. Schneiderman, Attorney General, New York City (Barbara D. Underwood, Cecelia C. Chang, Benjamin N. Gutman, Matthew W. Grieco and Brian A. Sutherland of counsel), for appellant.
    CPLR 4504 does not bar disclosure of hospital records to the New York State Commission of Correction for an investigation into an inmate’s death. (Matter of Camperlengo v Blum, 56 NY2d 251; Thomas v Morris, 286 NY 266; Matter of State Commn. of Correction v Nassau County Med. Ctr., 137 AD2d 127; Matter of Diaz v Lukash, 82 NY2d 211; Long v State of New York, 7 NY3d 269; Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525; Matter of Grand Jury Proceedings [Doe], 56 NY2d 348; Dillenbeck v Hess, 73 NY2d 278; Whalen v Roe, 429 US 589.)

      Michael A. Cardozo, Corporation Counsel, New York City (Sharyn Rootenberg, Larry A. Sonnenshein and Wayne A. McNulty of counsel), for respondent.
    The lower courts correctly quashed the New York State Commission of Correction’s subpoena as it sought production of confidential medical information subject to the physician-patient privilege and failed to comply with the CPLR and the requirements governing the disclosure of protected health information. (Matter of State Commn. of Correction v Nassau County Med. Ctr., 137 AD2d 127, 72 NY2d 810; Matter of City Council of City of N.Y. v Goldwater, 284 NY 296; Dillenbeck v Hess, 73 NY2d 278; People v Sinski, 88 NY2d 487; Prink v Rockefeller Ctr., 48 NY2d 309; Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130; People v Lay, 254 App Div 372, 279 NY 737; Matter of Grand Jury Proceedings [Doe], 56 NY2d 348; Koump v Smith, 25 NY2d 287; MacDonald v Clinger, 84 AD2d 482.)

      Legal Aid Society, New York City (Milton Zelermyer, Steven Banks, John Boston and Sarah Kerr of counsel), and Prisoners’ Legal Services, Albany (Karen Murtagh-Monks of counsel), for Legal Aid Society and another, amici curiae.
    The New York State Commission of Correction’s subpoena duces tecum for hospital records, in furtherance of its obligation to investigate in-custody deaths, is excepted from the physician-patient privilege. (Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130; Matter of Camperlengo v Blum, 56 NY2d 251; Matter of Kaminsky, 134 Misc 2d 218; Matter of State Commn. of Correction v Nassau County Med. Ctr., 137 AD2d 127; Matter of Jones v Smith, 64 NY2d 1003; Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525.)
   OPINION OF THE COURT

Chief Judge Lippman.

At issue is the enforceability of a subpoena duces tecum issued by respondent New York State Commission of Correction (the Commission) commanding Elmhurst Hospital, a health care facility operated by petitioner New York City Health and Hospitals Corporation (HHC), to produce its records respecting its care and treatment of one Carlos Frazier, who, at the time of his premortem hospitalization at the Elmhurst facility, was a correctional inmate in the custody of the City of New York. In the proceedings resulting in this appeal, the Commission’s subpoena was quashed upon the ground that it sought material shielded from disclosure by the physician-patient privilege. We now hold that this was error—that the records sought were not properly withheld from the Commission by reason of the asserted privilege and that the subpoena should be enforced.

Respondent Commission is constitutionally charged with the oversight of all correctional facilities in this state (NY Const, art XVII, § 5). Within the Commission there is a Medical Review Board (the Board) (Correction Law § 43) composed in significant part of duly licensed medical doctors, including a board certified pathologist and psychiatrist (Correction Law § 43 [1]). First among the Board’s statutorily assigned functions, powers and duties is the ‘ ‘ [i] nvestigat[ion] and review [of] the cause and circumstances surrounding the death of any inmate of a correctional facility” (Correction Law § 47 [1] [a]). The Board, relatedly, has broad investigative powers: it is given access to any correctional facility in which an inmate has died and the authority to order an autopsy, even where one has already been performed (Correction Law § 47 [1] [b], [c]). At the conclusion of its postmortem review, the Board must issue a report containing recommendations respecting the prevention of future similarly eventuated inmate deaths (Correction Law § 47 [1] [d]). The Board is separately required to report to the Commission generally “on the condition of systems for the delivery of medical care to inmates of correctional facilities and where appropriate [to] recommend such changes as it shall deem necessary and proper to improve the quality and availability of such medical care” (Correction Law § 47 [1] [e]).

In discharging its mandate to investigate the death of any inmate of a correctional institution, the Board not infrequently has occasion to request the medical records of inmates who, during their final illnesses, were transferred to and treated at noncorrectional health care facilities in accordance with 9 NYCRR 7010.2 (g), 7503.1 (a) and 7651.13. To enable the Board’s postmortem review in these situations the Commission, the Chairman of which “may request and receive” from any state or local agency or public authority the “information and data” (Correction Law § 44 [4]) necessary to the performance of its duties, has used its broad power “to issue and enforce” subpoenas and to examine witnesses “under oath, in accordance with and pursuant to [the] civil practice law and rules” (Correction Law § 46 [2]).

This proceeding arises from the Medical Review Board’s statutorily required investigation into the causes and circumstances surrounding the death of prison inmate Carlos Frazier. Mr. Frazier died subsequent to transfers from the City facility where he was incarcerated to Elmhurst Hospital and from there to Bellevue Hospital, his final destination. As is here relevant, the Commission served upon the records department of Elmhurst Hospital a subpoena duces tecum requesting Mr. Frazier’s medical records. Responding to the subpoena on the hospital’s behalf, HHC refused to turn over the sought records. Frazier, it pointed out, had been treated at Elmhurst in a nonprison unit, and, in view of that circumstance, it was HHC’s contention that the Commission had no special entitlement to his records, which HHC claimed were shielded from disclosure by the physician-patient privilege (CPLR 4504).

HHC thereafter brought the present motion pursuant to CPLR 2304 to quash the Commission’s subpoena. To the extent presently relevant, HHC in addition to alleging that it was precluded from turning over the Elmhurst records by the physician-patient privilege, claimed that under the Privacy Rule (45 CFR parts 160, 164) of the Health Insurance Portability and Accountability Act (HIPAA) (Pub L 104-191, 110 US Stat 1936 [1996] [codified as amended in scattered sections of titles 18, 26, 29 and 42 of the United States Code]), its disclosure of the sought records was not required.

Supreme Court agreed with HHC to the extent of holding in separate decisions that HIPAA permitted, but did not require, HHC’s surrender of the sought records absent authorization from Mr. Frazier’s personal representative, and that the records were privileged from disclosure pursuant to CPLR 4504. The court rejected the Commission’s contention that Correction Law §§ 46 and 47 impliedly created an exception to the statutory doctor-patient privilege asserted on Mr. Frazier’s behalf by HHC.

The Appellate Division affirmed (76 AD3d 453 [2010]). While terming the Commission’s investigative objectives “laudable,” it found that the clinical records sought were subject to the statutory privilege. The court noted that there was no public interest exception to the privilege. Exceptions, it said, were to be made, if at all, by the Legislature (76 AD3d 453, 455 [2010]). Inasmuch as the Legislature had not enacted an express exception in favor of the Commission, the court held that the Commission’s subpoena was properly quashed.

This Court granted respondent permission to appeal (16 NY3d 708 [2011]), and we now reverse.

The physician-patient privilege exists to protect important policies—namely, uninhibited and candid communication between patients and medical professionals, the accurate recording of confidential information and the protection of patients’ reasonable privacy expectations (see Matter of Grand Jury Investigation in N.Y. County, 98 NY2d at 531-533). Nonetheless, the privilege, which owes its existence solely to legislative enactment in derogation of the common law (id. at 529), is justified exclusively by these policies, and where they will not be advanced by the privilege’s assertion and there are countervailing legislatively sanctioned policies and practices militating in favor of disclosure, exceptions to the privilege, we have held, may be implied. In Matter of Camperlengo v Blum (56 NY2d 251 [1982]), we implied such an exception to allow the State Department of Social Services to subpoena otherwise privileged medical records from a health care provider in pursuance of a Medicaid fraud investigation. We noted in relevant part that,

“[although there is no express statutory exception to the privilege for Medicaid-related records, the Federal and State record-keeping and reporting requirements evidence a clear intention to abrogate the physician-patient privilege to the extent necessary to satisfy the important public interest in seeing that Medicaid funds are properly applied. Of course, this exception to the privilege is intended to be no broader than necessary for effective oversight of the Medicaid program” (id. at 255-256).

While we have since Camperlengo held that there is no general public interest exception to the physician-patient privilege (People v Sinski, 88 NY2d 487, 492 [1996]) and that there is no categorical exception for grand jury subpoenas (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d at 531-533), what is claimed by the Commission here is not a general exception that would compromise the policy objectives underlying the privilege, but a specific, narrow exception reasonably and indeed practically necessarily to be implied, as per Camperlengo, from the Legislature’s express provisions detailing the Commission’s responsibilities and powers, particularly with respect to investigating inmate deaths through its Medical Review Board.

It is plain that the Legislature intended for the Board to have plenary authority to “[investigate and review the cause and circumstances surrounding the death of any inmate of a correctional facility” (Correction Law § 47 [1] [a] [emphasis added]). In granting this authority, the Legislature cannot be supposed to have allowed that the thoroughness of the Board’s inquiry would vary with the site of an inmate’s premortem medical care—that the inquiry respecting the death of an inmate who in the period preceding his or her death was treated in a prison or a prison unit in a hospital would be conducted with the benefit of a full medical record, whereas one respecting an inmate who had received premortem treatment in a nonprison unit would have to be performed without such a record in the event that a waiver of the physician-patient privilege could not be obtained.

Countenancing such an obviously unintended and unreasonable disparity would, moreover, not serve any justifying purpose of the privilege. The prospect of a confidential postmortem review (see Public Officers Law § 89 [2] [b] [ii]; § 96) of an inmate’s medical record should have no untoward effect upon the physician-patient relationship. Even if it did, however, the Legislature has provided that all inmate deaths must be reviewed and the extent of the authorized review, even without the records here claimed to be subject to the physician-patient privilege, is so great as to render the effect of the abrogation of that privilege in this context relatively insignificant with respect to the interests the privilege properly safeguards. The Medical Review Board, as noted, must, pursuant to express statutory command, have at its disposal all of the medical records of a deceased inmate generated in any correctional facility. It must, in addition, be afforded a report of the autopsy necessarily to be performed in the event of an inmate death (County Law § 671 [1]; § 674 [5]; § 677 [6]) and is authorized itself to command the performance of an additional autopsy (Correction Law § 47 [1] [c]). In light of the Legislature’s authorization of such broad and intrusive investigative authority, there is no plausible contention that there is some residual privacy, record keeping or treatment interest effectively to be vindicated by asserting the privilege. To the extent that interests protected by the privilege are implicated, they have already been irretrievably affected given the investigative powers expressly committed by the Legislature to the Commission and its Medical Review Board.

Finally, although HHC presses its argument based on the HIPAA Privacy Rule as an alternative ground for affirmance, the Privacy Rule does not prohibit disclosure of the sought records. The Rule specifically allows for disclosures “required by law” (45 CFR 164.512 [a]; see Arons v Jutkowitz, 9 NY3d 393, 414 [2007]), and included under that heading are disclosures pursuant to “subpoenas . . . issued by ... an administrative body authorized to require the production of information” (45 CFR 164.103). The subpoena at bar, the validity of which we now uphold as against petitioner’s claim of privilege, falls comfortably within this description.

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

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order reversed, etc.

      . CPLR 4504 (a) provides, in pertinent part:
      “[u]nless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing [or] licensed practical nursing . . . shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity. The relationship of a physician and patient shall exist between a medical corporation . . . and the patients to whom [it] . . . render [s] professional medical services.”

      . It is not disputed that the physician-patient privilege may be asserted by a hospital on its patient’s behalf (see Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 528 [2002]).

      . It is, in this connection, clear that the Commission “must be granted access . . . to all books, records, and data pertaining to any correctional facility” and may require “the officers or employees of a correctional facility [to provide] any information deemed necessary for the purpose of carrying out the commission’s functions, powers and duties” (Correction Law § 46 [1]).


author: Graffeo, J.

text:
    [969 NE2d 770, 946 NYS2d 552]
    The People of the State of New York, Appellant, v Frank Suber, Respondent.
    Argued March 22, 2012;
    decided May 8, 2012

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Seth M. Lieberman of counsel), for appellant.
    The information w'as facially sufficient because the corroboration requirement of CPL 60.50 does not apply to informations. (People v Keizer, 100 NY2d 114; People v Casey, 95 NY2d 354;
      People v Kalin, 12 NY3d 225; People v Tychanski, 78 NY2d 909; People v Heller, 180 Misc 2d 160; People v McKinney, 145 Misc 2d 460; Matter of Theroux v Reilly, 1 NY3d 232; People v Nuccio, 78 NY2d 102; People v Gilmour, 98 NY2d 126; People v Coe, 71 NY2d 852.)

      Legal Aid Society, New York City (Nancy E. Little and Steven Banks of counsel), for respondent.
    The Appellate Term correctly held that the information was jurisdictionally defective where, apart from respondent’s statement to the police, it failed to set forth any allegations that a crime had occurred. (People v Casey, 95 NY2d 354; People v Alejandro, 70 NY2d 133; People v Jones, 9 NY3d 259; Matter of Jahron S., 79 NY2d 632; People v Potwora, 44 AD2d 207; People v Mayo, 36 NY2d 1002; People v Escalera, 143 Misc 2d 779; Matter of Angel A., 92 NY2d 430; People v Kalin, 12 NY3d 225; People v Bello, 92 NY2d 523.)
   OPINION OF THE COURT

Graffeo, J.

The issue in this appeal is whether a defendant’s admissions must be corroborated in order to satisfy the prima facie case requirement for an information. We hold that corroboration is not necessary in this context.

Defendant Frank Súber registered as a level three sex offender in 1999. At that time, he received written notification that any change in his home address had to be communicated to the Division of Criminal Justice Services (DCJS) and that he also had to personally verify his residence address with local law enforcement officials every 90 days. In December 2005, defendant moved to an address in Brooklyn and he subsequently moved to another location within the borough in February 2006. On both occasions, defendant failed to update his information with DCJS and did not verify his addresses with the New York City Police Department. In July 2006, he notified DCJS that he was living in the Bronx.

Defendant eventually told a police officer about his two former Brooklyn residences. As a result of that disclosure, the People filed a misdemeanor information charging defendant with two counts of failing to personally verify his home address with local law enforcement every 90 days (see Correction Law § 168-f [3]) and two counts of failing to register as a sex offender within 10 days after changing his address (see Correction Law § 168-f [4]). One of the allegations in the accusatory instrument was that defendant had admitted moving to two Brooklyn residences without notification during the relevant time periods.

In Criminal Court, defendant challenged the facial sufficiency of the information because it did not state facts or include affidavits that corroborated his statements to the police. After the court concluded that corroboration was not required, defendant pleaded guilty to one count of failing to register within 10 days of moving in return for a sentence of time served. The Appellate Term reversed and dismissed the accusatory instrument, holding that an information must set forth corroboration of an admission and that the lack of corroborative allegations regarding defendant’s residences rendered the accusatory instrument jurisdictionally insufficient (35 Misc 3d 53 [App Term, 2d Dept 2011]). A Judge of this Court granted leave to appeal (17 NY3d 802 [2011]) and we now reverse and reinstate the conviction.

Because defendant pleaded guilty, he forfeited any challenges to nonjurisdictional defects in the accusatory instrument—only jurisdictional and certain constitutional issues may be raised on appeal (see generally People v Konieczny, 2 NY3d 569, 573 [2004]). Not every statutory requirement for an accusatory instrument is jurisdictional in nature (see People v Casey, 95 NY2d 354, 362 [2000]). The issue before us is whether corroboration of a defendant’s admission is necessary in an information. If it is not required, then we have no occasion to address whether a corroboration element would be jurisdictional in nature.

As a general rule, a person cannot “be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed” (CPL 60.50). Since this corroboration provision refers only to convictions, it has no bearing on the adequacy of charging instruments that provide the bases for prosecutions. Instead, the statutes that apply to accusatory instruments must be consulted to determine whether corroboration of an accused’s admission is needed to commence a criminal proceeding.

The Criminal Procedure Law contains various mandated components for the different categories of accusatory instruments. As pertinent to the issue in this appeal, a complaint is one of the simplest forms of an accusatory instrument. It must contain “facts of an evidentiary character” (CPL 100.15 [3]) that establish “reasonable cause” to believe that the accused committed the charged offense (CPL 100.40 [4] [b]). That requirement also applies to an information (see CPL 100.40 [1] [a], [b]) but this type of instrument is subject to a more stringent test: the information and any supporting depositions must set forth “[n]on-hearsay allegations” that “establish, if true, every element of the offense charged and the defendant’s commission thereof’ (CPL 100.40 [1] [c]). This is referred to as the “prima facie case” standard for informations (see e.g. People v Casey, 95 NY2d at 362). “The reason for requiring the additional showing of a prima facie case . . . lies in the unique function that an information serves under the statutory scheme established by the Criminal Procedure Law” (People v Jones, 9 NY3d 259, 262 [2007] [internal quotation marks omitted]).

In the hierarchy of accusatory instruments, the Criminal Procedure Law imposes additional requirements for indictments. In order to issue an indictment, a grand jury must be presented with “competent and admissible evidence . . . providing] reasonable cause” and the proof must be “legally sufficient to establish that such person committed such offense” (CPL 190.65 [1]). The phrase “legally sufficient evidence” is defined in the Criminal Procedure Law as “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent” (CPL 70.10 [1]). Section 190.65 (1) similarly directs that the proof presented to the grand jury must be corroborated if corroboration is legally required to sustain a conviction (see CPL 190.65 [1] [a]). Since CPL 60.50 states that a conviction cannot be based solely on an accused’s uncorroborated admission, both CPL 70.10 (1) and 190.65 (1) correlate the corroboration rule to grand jury indictments.

On occasion, we have referred to the “legally sufficient evidence” standard for indictments as a “prima facie case” requirement (see e.g. People v Gordon, 88 NY2d 92, 95 [1996]; People v Swamp, 84 NY2d 725, 730 [1995]). Based on this label, one could view our precedent as having equated the prima facie case required for an indictment—which includes a corroboration requirement—with the prima facie case standard for an information. Indeed, the dissent adopts the view that corroboration is a component of an information’s prima facie case even though the statutes governing the content of informations do not incorporate the “legally sufficient evidence” test. But a closer examination of our decisions and the relevant statutes reveals that there are at least two important differences that result in distinct prima facie case standards for informations and indictments.

First, we have been careful to note that the prima facie showing for an indictment refers to legally sufficient evidence that is competent—i.e., evidence that is not “inadmissible under any circumstances because [it is] subject to a per se exclusionary rule” (People v Swamp, 84 NY2d at 732; see People v Gordon, 88 NY2d at 96; People v Oakley, 28 NY2d 309, 312 [1971]; see generally People v Grant, 17 NY3d 613, 616 [2011]; People v Mills, 1 NY3d 269, 274-275 [2003]; People v Bello, 92 NY2d 523, 525-526 [1998]; People v Hetrick, 80 NY2d 344, 349 [1992]). The prima facie case for an information, in contrast, excludes only a particular type of incompetent evidence—hearsay—without restricting the People from utilizing other types of proof in order to commence a criminal proceeding (see CPL 100.40 [1] [c]).

Second, and more relevant to this appeal, the precise language that the Legislature chose when the Criminal Procedure Law was adopted unmistakably establishes that corroboration was intended to be a component of the prima facie case for an indictment but not an information. Contrary to the specific reference to the corroboration rule in the statutes that pertain to indictments (see CPL 70.10 [1]; 190.65 [1]), the text of the information provision references “[n]on-hearsay allegations . . . establishing], if true, every element of the offense and the defendant’s commission thereof’ (CPL 100.40 [1] [c]). This statute governing informations does not state, directly or inferentially, that this type of accusatory instrument must corroborate an accused’s admission. Since clear and unequivocal statutory language is presumptively entitled to authoritative effect (see e.g. People v Ballman, 15 NY3d 68, 72 [2010]; People v Kisina, 14 NY3d 153, 158 [2010]; People v Garson, 6 NY3d 604, 611 [2006]), CPL 100.40 (1) does not mandate corroboration of an admission in an information. Hence, the prima facie case requirement for an information “does [not] rise to the level of legally sufficient evidence that is necessary” to set forth a facially valid indictment or “survive a motion to dismiss based on the proof presented at trial” (People v Kalin, 12 NY3d 225, 230 [2009]).

Legislative history confirms this textual analysis. The drafters of the Criminal Procedure Law initially proposed that the “legally sufficient evidence” standard be incorporated in the legislation that ultimately became CPL 100.40 (see Temp St Commn on Rev of Penal Law and Crim Code, 1967 Proposed NY CPL 50.35 [1] [c], at 84; 1968 Study Bill and Commn Rep of Temp St Commn on Rev of Penal Law and Crim Code, Proposed NY CPL 50.35 [1] [c], at 35). That term of art—“legally sufficient evidence”—was later removed by the Legislature from the information provision and replaced with the current “[n] on-hearsay allegations” language (see Temp St Commn on Rev of Penal Law and Crim Code, 1969 Proposed NY CPL 100.40, at 55). Such a significant alteration during the drafting process indicates that this issue was considered and a decision was made to exclude corroboration from the necessary components of a facially sufficient information (see generally Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 100.40, at 388).

Events that occurred after the enactment of the CPL provide additional support for this conclusion. Despite the technical definition of “legally sufficient evidence,” in the 1970s a split emerged in the appellate courts as to whether an indictment had to allege corroborative facts (compare People v King, 48 AD2d 457, 459 [1st Dept 1975], with People v Laws, 54 AD2d 518, 519 [3d Dept 1976]). The Legislature responded by amending CPL 190.65 (1) to include an explicit corroboration rule (see L 1983, ch 28, § 1) even though this created a redundancy with CPL 70.10 (1) (see Bellacosa, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.65, 1993 Pocket Part, at 107-108). Notably, at the time of this amendment, the Legislature did not add similar phraseology in CPL 100.40 (1) (c), which suggests that the Legislature did not wish to apply a corroboration requirement to informations.

The dissent disregards this linguistic and historical proof, choosing instead to place emphasis on phrases from People v Alejandro (70 NY2d 133 [1987]) and Matter of Jahron S. (79 NY2d 632 [1992]) to support its mistaken belief that the prima facie case test is always identical to the legally sufficient evidence standard. We have previously explained that those decisions contain language that was not essential to their holdings and therefore do not bind subsequent cases (see People v Casey, 95 NY2d at 362; People v Kalin, 12 NY3d at 232). To the extent that Alejandro and Jahron S. may have tended to equate a prima facie case for an information or a juvenile delinquency petition with legally sufficient evidence under CPL 70.10 (1), those portions of the writings were dicta and, as we now explain, are incompatible with the governing statutes. The core holdings of the cases—that the prima facie case rule applies to a juvenile delinquency petition (see Matter of Jahron S., 79 NY2d at 639) and that the failure to allege every element of an offense is a jurisdictional defect (see People v Alejandro, 70 NY2d at 136; People v Casey, 95 NY2d at 362)—remain controlling law.

For all of these reasons, we hold that corroboration of a defendant’s admission is not a component of the prima facie case requirement for an information. In this case, the absence of allegations in the information corroborating defendant’s statements about his residences in December 2005 and February 2006 did not affect the jurisdictional validity of the information and his conviction on the guilty plea should not have been set aside (see People v Kalin, 12 NY3d at 232).

Our holding does not dispense with corroboration for all purposes in a prosecution premised on a misdemeanor information. We simply conclude that the accusatory instrument is not defective if it does not set forth corroborative evidentiary allegations. If a case proceeds to trial, the requirement for corroboration in CPL 60.50 is triggered and a person cannot “be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.”

Accordingly, the order of the Appellate Term should be reversed and the judgment of the Criminal Court of the City of New York, Kings County, reinstated.

Ciparick, J. (dissenting). In holding that the corroboration of a defendant’s admission is not necessary to satisfy the prima facie case requirement for an information, the majority today departs from well settled precedent and again “brushes aside the protections that must be afforded to misdemeanor defendants to ensure that such prosecutions do not become routinized or treated as insignificant or unimportant” (People v Kalin, 12 NY3d 225, 234 [2009, Ciparick, J., dissenting]). Accordingly, I respectfully dissent.

The Legislature has defined what constitutes a facially sufficient information in the Criminal Procedure Law (see CPL 100.40 [1]). Like a complaint, an information must allege “facts of an evidentiary character” (CPL 100.15 [3]) that “provide reasonable cause to believe that the defendant committed the offense charged” (CPL 100.40 [1] [b]). Unlike a complaint, however, an information must also contain “[n] on-hearsay allegations . . . [that] establish, if true, every element of the offense charged and the defendant’s commission thereof’ (CPL 100.40 [1] [c]). We have referred to this latter, more “stringent condition” as the “prima facie case” requirement (see People v Alejandro, 70 NY2d 133, 137 [1987]; see also People v Casey, 95 NY2d 354, 362 [2000]).

In Alejandro, we explained the reason that the Legislature requires “the additional showing of a prima facie case for an information lies in the unique function that an information serves under the statutory scheme” (70 NY2d at 137). After all, absent waiver, an information is the sole “instrument upon which [a] defendant is prosecuted for a misdemeanor or a petty offense” (id. at 137-138; see People v Jones, 9 NY3d 259, 262 [2007]; see also CPL 170.65 [3]). We further noted that in the Legislature’s “insistence on a prima facie case for informations, there clearly appears a vital legislative concern that a defendant—who, under the Criminal Procedure Law, can be prosecuted on the basis of an information alone—must have, at least, an assurance that the information contains allegations establishing a legally sufficient case” (Alejandro, 70 NY2d at 139 [emphasis added]). Given this “vital legislative concern,” we held that an information which fails to set forth a prima facie case is jurisdictionally defective (see id.).

We affirmed our holding in Alejandro in Matter of Jahron S. (79 NY2d 632 [1992]). There, in the context of a family court juvenile delinquency proceeding, we concluded “the prima facie standard applicable to informations applies equally to Family Court petitions” (id. at 639). Critical to this determination, we observed that in order to establish a legally sufficient case (i.e., state a prima facie case), both an information and a family court petition must set forth “sufficient evidence to warrant a conviction, if unexplained or uncontradicted” (id. [internal quotation marks omitted and emphasis added]).

In this case, the allegation in the information “that defendant had admitted moving to two Brooklyn residences without notification during the relevant time periods” (majority op at 250) clearly would be insufficient evidence to warrant a conviction for a violation of Correction Law § 168-f (4). As the majority notes, CPL 60.50 provides that a defendant cannot “be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.” Here, it is undisputed that the People did not furnish additional proof to corroborate these admissions. Although the majority asserts that CPL 60.50 “has no bearing on the adequacy” (majority op at 250) of the information in this case, our decision in Jahron S. suggests the opposite conclusion. Indeed, applying the rule enunciated in Jahron S., it should be readily apparent that the information fails to establish a prima facie case for a violation of Correction Law § 168-f (4) since the allegation rests solely on an uncorroborated admission that, if unexplained or uncontradicted, would be legally insufficient to warrant a conviction.

Nonetheless, the majority, relying on a 1969 revision to the statute governing informations, pronounces that CPL 100.40 (1) does not mandate corroboration of a defendant’s admission alleged in an information (see majority op at 252). In arriving at this conclusion, the majority finds that the prima facie requirement for informations equates to something less than legal sufficiency (see majority op at 252). This determination, however, is squarely at odds with our holdings in Alejandro and Jahron S.—cases decided long after the 1969 amendment to the Criminal Procedure Law. Indeed, in those cases, we carefully considered the “legislative purpose of establishing a special and more stringent condition for a finding of facial sufficiency of an information” (Alejandro, 70 NY2d at 137) and unequivocally concluded that, to satisfy the prima facie requirement, the allegations set forth in an information must be legally sufficient.

The majority also finds support in a 1983 amendment to CPL 190.65 (1), a statute pertaining to indictments. Such reliance is equally misplaced. Effective April 5, 1983, the Legislature amended this statute by inserting language requiring “that the evidence supporting an indictment contain the corroboration required by law to sustain a conviction” (Matter of Rodney J., 108 AD2d 307, 312 [1st Dept 1985]; see L 1983, ch 28, § 1). The majority notes that “the Legislature did not add similar phraseology in CPL 100.40 (1) (c)” and extrapolates that “the Legislature did not wish to apply a corroboration requirement to informations” (majority op at 253). I disagree.

It is clear that the purpose of the 1983 amendment to CPL 190.65 (1) was not to fashion a distinction between indictments and informations but rather “to eliminate the uncertainty created by several Appellate Division decisions as to whether corroboration was a necessary prerequisite for indictment” (Rodney J., 108 AD2d at 312; compare People v King, 48 AD2d 457, 459 [1st Dept 1975] [corroboration not required to sustain an indictment], with People v Laws, 54 AD2d 518 [3d Dept 1976] [corroboration required to sustain an indictment]). Moreover, we were surely aware of the 1983 amendment to this statute when we decided Alejandro in 1987 and Jahron S. in 1992. Yet, in Alejandro and Jahron S., we unmistakably held that an information (and a family court petition) must contain allegations that establish a legally sufficient case. Such a rule necessarily requires corroboration of a defendant’s admission (see CPL 70.10 [1]).

I see no reason why the majority fails to adhere to this sound precedent. Indeed, many lower courts, also following the 1983 amendment to CPL 190.65 (1), have routinely concluded that corroboration of a defendant’s admission in an information is necessary to state a prima facie case (see e.g. People v Miedema, 24 Misc 3d 132[A], 2009 NY Slip Op 51368[U] [App Term, 2d Dept 2009]; People v Gundarev, 25 Misc 3d 1204[A], 2009 NY Slip Op 51972[U], *6 [Crim Ct, Kings County 2009] [finding it anomalous “that while a felony indictment may be dismissed if based solely on defendant’s uncorroborated admissions, a defendant charged with a misdemeanor, who may not be convicted solely on a confession, might nevertheless be forced to proceed to trial in those circumstances”]).

In sum, given that a misdemeanor defendant does not have the protections of a grand jury reviewing his case, but rather “can be prosecuted on the basis of an information alone” (Alejandro, 70 NY2d at 139), I would affirm the order of the Appellate Term and hold that an information containing allegations premised solely on the uncorroborated admissions of a defendant does not satisfy the prima facie case requirement.

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

Order reversed, etc.

      . When defendant was charged, a violation of these provisions was classified as an A misdemeanor for a first offense and a D felony for subsequent offenses (see Correction Law former § 168-t [2005]; L 1999, ch 453, § 20). Currently, a first offense is deemed an E felony and subsequent violations are denoted as D felonies (see Correction Law § 168-t; L 2007, ch 373, § 1).

      . Although the dissent cites some lower court cases that are consistent with its position (see dissenting op at 257), that view has not been shared universally (see e.g. People v Lopez, 34 Misc 3d 476, 481 [Crim Ct, Richmond County 2011] [observing that a “plain reading of the relevant statutes indicates that ‘two standards’ is exactly what the Legislature set up”]).

        (n. cont*d)

       The Legislature has defined “legally sufficient evidence” as “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent” (CPL 70.10 [1]).


author: Smith, J. Chief Judge Lippman (dissenting).

text:
    [969 NE2d 758, 946 NYS2d 540]
    Joseph W. Sullivan, Appellant, v William F. Harnisch et al., Respondents.
    Argued March 22, 2012;
    decided May 8, 2012

      POINTS OF COUNSEL

      The Law Offices of Daniel Felber, New York City (Daniel M. Felber and Benjamin N. Leftin of counsel), for appellant.
    I. This Court’s Wieder/Horn doctrine mandates a case-by-case analysis to determine whether the employment relationship under consideration includes an implied-in-law exception to the at-will doctrine. (Wieder v Skala, 80 NY2d 628; Martin v New York Life Ins. Co., 148 NY 117; Rooney v Tyson, 91 NY2d 685; Wakefield v Northern Telecom, Inc., 769 F2d 109; Matter of Starishevsky v Hofstra Univ., 161 Misc 2d 137; Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187; City of New York v Pennsylvania R.R. Co., 37 NY2d 298; Metro Kitchenworks Sales, LLC v Continental Cabinets, LLC, 31 AD3d 722; Mohawk Maintenance Co. v Kessler, 52 NY2d 276; Diamore Realty Corp. v Stern, 50 AD3d 621.) II. Appellant, as the Chief Compliance Officer of a registered investment adviser, has stated a valid claim for breach of implied contract under the Wieder/Horn implied-in-law exception to the at-will employment doctrine. (Wieder v Skala, 80 NY2d 628; Horn v New York Times, 100 NY2d 85.)

      Morrison Cohen LLP, New York City (Y. David Scharf, Danielle C. Lesser and David C. Pollack of counsel), and Fulbright & Jaworski L.L.P. (Neil G. Sparber and Samantha E. Beltre of counsel) for respondents.
    I. The First Department correctly held that Joseph W Sullivan’s claim is precluded for lack of any constitutional, statutory, or contractual basis. (Murphy v American Home Prods. Corp., 58 NY2d 293; Martin v New York Life Ins. Co., 148 NY 117; Smalley v Dreyfus Corp., 10 NY3d 55; Horn v New York Times, 100 NY2d 85; Sabetay v Sterling Drug, 69 NY2d 329; Trakis v Manhattanville Coll., 51 AD3d 778; Haviland v Aron & Co., 212 AD2d 439, 85 NY2d 810; Stevens v New York, 691 F Supp 2d 392; Lobosco v New York Tel. Co./NYNEX, 96 NY2d 312; Fraser v Fiduciary Trust Co. Intl., 417 F Supp 2d 310.) II. The First Department properly held that the “very narrow” exception to the at-will doctrine established in Wieder v Skala (80 NY2d 628 [1992]) and explicitly restricted to the facts in Horn v New York Times (100 NY2d 85 [2003]) cannot save Mr. Sullivan. (Haviland v Aron & Co., 212 AD2d 439; Slue v New York Univ. Med. Ctr., 409 F Supp 2d 349; Gambello v Time Warner Communications, Inc., 186 F Supp 2d 209; Smith v AVSC Intl., Inc., 148 F Supp 2d 302; People ex rel. Karlin v Culkin, 248 NY 465.) III. This Court should not alter the well-established law and public policy in New York to create a cause of action for Mr. Sullivan. (Murphy v American Home Prods. Corp., 58 NY2d 293; Sabetay v Sterling Drug, 69 NY2d 329; Horn v New York Times, 100 NY2d 85; Leibowitz v Bank Leumi Trust Co. of N.Y., 152 AD2d 169; Szaller v American Natl. Red Cross, 293 F3d 148; Wieder v Skala, 80 NY2d 628; Oakley v May Dept. Stores Co., 17 F Supp 2d 533.)
   OPINION OF THE COURT

Smith, J.

We held in Murphy v American Home Prods. Corp. (58 NY2d 293 [1983]), and have several times reaffirmed, that New York common law does not recognize a cause of action for the wrongful discharge of an at-will employee. We decline in this case to make an exception to that rule for the compliance officer of a hedge fund.

I

Plaintiff, Joseph Sullivan, was, according to his complaint, a 15% partner in two affiliated firms, defendants Peconic Partners LLC and Peconic Asset Managers LLC (collectively called Peconic, and colloquially referred to as a hedge fund). He was also, the complaint alleges, Peconic’s “Executive Vice President, Treasurer, Secretary, Chief Operating Officer and Chief Compliance Officer.” Defendant William Harnisch was the majority owner, Chief Executive Officer and President.

Sullivan was fired after a dispute with Harnisch. The dispute was in part about money: the complaint alleges that the dismissal occurred within hours after a lawyer for Sullivan contacted Peconic’s counsel to voice objections to a proposed agreement that would have eliminated Sullivan’s ownership interest. The complaint also alleges, however, that there was another motive for the dismissal that is more relevant to this appeal: objections raised by Sullivan, in his capacity as Chief Compliance Officer, to certain sales of stock by Harnisch for his personal account and the accounts of members of his family.

According to the complaint, these stock sales amounted to “front-running”—selling in anticipation of transactions by the firm’s clients—and enabled Harnisch to take advantage of an opportunity from which the clients were excluded. The complaint alleges that Sullivan “confronted” Harnisch about these improper trades, “voiced objection to them, and insisted that they be reversed or otherwise properly addressed.” Harnisch refused, and yelled at Sullivan for raising the subject. Sullivan was fired days later.

Sullivan asserted nine causes of action against Harnisch and Peconic, of which only one is now before us. That claim says that Sullivan was fired because he “spoke out” about “manipulative and deceptive trading practices,” and that his dismissal violated “a company policy to prohibit retaliation” for such conduct. The complaint, however, does not identify any statement of this “company policy”; it infers the existence of the policy from Peconic’s obligations under the securities laws and the firm’s own Code of Ethics to avoid improper transactions, and from Sullivan’s duty as Chief Compliance Officer to see that those obligations were performed. The gist of Sullivan’s claim is that the legal and ethical duties of a securities firm and its compliance officer justify recognizing a cause of action for damages when the compliance officer is fired for objecting to misconduct.

On defendants’ motion for summary judgment, Supreme Court held this claim to be legally sufficient, but the Appellate Division reversed and dismissed the claim (Sullivan v Harnisch, 81 AD3d 117 [1st Dept 2010]). The Appellate Division granted leave to appeal, and we now affirm.

II

Murphy held that, absent violation of a constitutional requirement, statute or contract, “an employer’s right at any time to terminate an employment at will remains unimpaired” (58 NY2d at 305). In Murphy, we applied that rule to dismiss the claim of a plaintiff who said he was fired “because of his disclosure to top management of alleged accounting improprieties on the part of corporate personnel” (id. at 297-298). We reached similar results in Sabetay v Sterling Drug (69 NY2d 329, 332 [1987]), where the plaintiff claimed “that he was discharged because he refused to participate” in illegal conduct including “tax avoidance schemes and maintenance of slush funds,” and in Horn v New York Times (100 NY2d 85 [2003]), where a doctor claimed that she was fired for refusing to violate patient confidentiality. Plaintiffs claim here is also barred unless something in this case justifies an exception to the rule we stated in Murphy.

In general, as we pointed out in Horn, American courts, including our own, “have proved chary of creating common-law exceptions to the rule and reluctant to expand any exceptions once fashioned” (id. at 91). Indeed, we have recognized an exception only once, in Wieder v Skala (80 NY2d 628 [1992]). The plaintiff in Wieder was a lawyer who claimed to have been dismissed by his law firm “because of his insistence that the firm comply with the governing disciplinary rules by reporting professional misconduct” committed by one of the plaintiffs colleagues (id. at 631). We held his claim good against a motion to dismiss, in an opinion that stressed both the ethical obligations of members of the bar and the importance of those obligations to the employment relationship between a lawyer and a law firm. We said:

“[P]laintiff s performance of professional services for the firm’s clients as a duly admitted member of the Bar was at the very core and, indeed, the only purpose of his association with defendants. . . . [P]laintiffs duties and responsibilities as a lawyer and as an associate of the firm were so closely linked as to be incapable of separation. It is in this distinctive relationship between a law firm and a lawyer hired as an associate that plaintiff finds the implied-in-law obligation on which he founds his claim.
“We agree with plaintiff that in any hiring of an attorney as an associate to practice law with a firm there is implied an understanding so fundamental to the relationship and essential to its purpose as to require no expression: that both the associate and the firm in conducting the practice will do so in accordance with the ethical standards of the profession” (80 NY2d at 635-636).

We also referred in the Wieder opinion to “the unique function of self-regulation belonging to the legal profession” (id. at 636), and said that

“these unique characteristics of the legal profession in respect to this core Disciplinary Rule make the relationship of an associate to a law firm employer intrinsically different from that of the financial managers to the corporate employers in Murphy and Sabetay” (id. at 637).

It is obvious from the quoted language that we intended the exception to the at-will doctrine we recognized in Wieder to be a narrow one. The Appellate Division in this case said that Wieder is “sui generis” (81 AD3d at 123), but we do not need to go that far to decide this case. Assuming that there are some employment relationships, other than those between a lawyer and a law firm, that might fit within the Wieder exception, the relationship in this case is not one of them.

Sullivan stresses the importance of compliance officers in the overall scheme of federal securities regulation to which the two Peconic firms, registered investment advisers, are subject. The Securities and Exchange Commission (SEC) has found that “it is critically important for funds and advisers to have strong systems of controls in place” (Final Rule: Compliance Programs of Investment Companies and Investment Advisers, SEC Release Nos. IA-2204, IC-26299, § I, available at http:// www.sec.gov/rules/final/ia-2204.htm), and requires each registered adviser to designate a chief compliance officer who will be responsible for administering policies and procedures designed to prevent violations of federal law and regulations (17 CFR 275.206[4]-7 [a], [c]). From this, Sullivan reasons that compliance with securities laws was central to his relationship with Peconic in the same way that ethical behavior as a lawyer was central in Wieder to the plaintiffs employment at a law firm. But the analogy fails.

Important as regulatory compliance is, it cannot be said of Sullivan, as we said of the plaintiff in Wieder, that his regulatory and ethical obligations and his duties as an employee “were so closely linked as to be incapable of separation” (Wieder, 80 NY2d at 635). Sullivan was not associated with other compliance officers in a firm where all were subject to self-regulation as members of a common profession. Indeed, Sullivan was not even a full-time compliance officer. He had four other titles at Peconic, including Executive Vice-President and Chief Operating Officer, and was, according to his claim, a 15% partner in the business. It is simply not true that regulatory compliance, in the words of Wieder, “was at the very core and, indeed, the only purpose” of Sullivan’s employment.

It is beyond dispute that compliance with extensive federal regulations—overseen, at firms like Peconic, by compliance officers—is an integral part of the securities business. But the existence of federal regulation furnishes no reason to make state common law governing the employer-employee relationship more intrusive. Congress can regulate that relationship itself, to the extent that it thinks the objectives of federal law require it. Indeed, after the events involved in this case, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub L 111-203, 124 Stat 1376 [2010], codified at various sections of United States Code), which provides whistleblower protection, including a private right of action for double back pay, for employees who are fired for furnishing information about violations of the securities laws to the SEC (Dodd-Frank Act § 922 [a], 15 USC § 78u-6). That statute seems not to apply to conduct like that alleged in Sullivan’s complaint; Sullivan does not claim to have blown a whistle—i.e., to have told the SEC or anyone else outside Peconic about Harnisch’s alleged misconduct—but only to have confronted Harnisch himself. Nothing in federal law persuades us that we should change our own law to create a remedy where Congress did not.

Accordingly, the order of the Appellate Division should be affirmed with costs, and the certified question answered in the affirmative.

Chief Judge Lippman (dissenting).

In the wake of the devastation caused by fraudulent financial schemes—such as the Mad-off ponzi operation, infamous for many reasons including the length of time during which it continued undetected—the courts can ill afford to turn a blind eye to the potential for abuses that may be committed by unscrupulous financial services companies in violation of the public trust and the law. In the absence of conscientious efforts by those insiders entrusted to report and prevent such abuses of investors, such behavior can run rampant until a third party outside the company discovers it and takes action. The message that will be taken from the majority’s decision is self-evident: if compliance officers (and others similarly situated) wish to keep their jobs, they should keep their heads down and ignore good-faith suspicions or evidence they may have that their employers have engaged in illegal and unethical behavior, even where such violations could cause or have caused staggering losses to their employers’ clients. The majority’s conclusion that an investment adviser like defendant Peconic has every right to fire its compliance officer, simply for doing his job, flies in the face of what we have learned from the Madoff debacle, runs counter to the letter and spirit of this Court’s precedent, and facilitates the perpetration of frauds on the public.

Because the majority unduly narrows the scope of a purposefully and carefully crafted exception to the doctrine of at-will employment, and unfathomably permits the termination of a hedge fund’s chief and deputy chief compliance officers in the midst of their investigation of the CEO’s allegedly “manipulative and deceptive trading practices that include[d] illegal ‘front-running’ in violation of federal and state securities laws,” I respectfully dissent.

The majority concedes that “there are some employment relationships, other than those between a lawyer and a law firm, that might fit within the Wieder exception” (majority op at 264), but erroneously concludes that such a relationship did not exist in this case. Nevertheless, the decision of the Court undermines the exception to the at-will employment doctrine (as recognized in Wieder v Skala, 80 NY2d 628 [1992], and reaffirmed in Horn v New York Times, 100 NY2d 85 [2003]), by excluding arbitrarily hedge fund compliance officers from the protections extended to lawyers working in law firms. In so doing, hedge fund managers are given carte blanche to terminate the very employees who are charged with the critical statutorily mandated role of ensuring adherence to ethical and legal obligations, for doing the jobs they were hired to do. These protections must exist not only to decrease the likelihood that such employees will succumb to pressures to ignore or violate their obligations for fear of termination, but also to protect the public.

Our decisions in Wieder and Horn provide guideposts for determining whether an employment relationship falls within the exception to the general rule. As applied to plaintiff Sullivan, chief among these considerations are that his sole function as compliance officer was to ensure compliance with the applicable internal and external ethical and legal requirements, his employer was bound by the same obligations, and his job as a compliance officer entailed fundamental self-regulatory functions.

In Wieder, we held that the plaintiff law firm associate’s “central professional purpose” for associating with the employer was “the lawful and ethical practice of law” (Wieder, 80 NY2d at 636). Sullivan’s central purpose as a compliance officer was to ensure that his employer adhered to the regulations governing hedge funds. In other words, it was Sullivan’s responsibility to make certain that Peconic engaged in the lawful and ethical provision of investment adviser services.

As the Supreme Court correctly reasoned below in this case, “Sullivan and [Peconic] were engaged in a ‘common professional enterprise’ and ‘were mutually bound to follow’ both the Code [of Ethics] and any federal or state securities laws at issue.” Sullivan’s position is comparable to that of the plaintiff lawyer in Wieder and in stark contrast to that of the plaintiff doctor in Horn, who was not covered by the Wieder exception, in part because while as a physician she had certain obligations to the New York Times employees with whom she interacted, those obligations were not shared by her non-medical employer. Here, Sullivan and his employer shared certain fundamental ethical and legal responsibilities that they were bound to respect in their dealings with and on behalf of Peconic’s clients.

Just as the plaintiff in Wieder was engaged in a self-regulating profession, the practice of law, Sullivan’s job responsibilities at Peconic involved substantial self-regulatory aspects. This was not the case in Horn, wherein the Court held that “the principle of physician-patient confidentiality ... is not a self-policing rule critical to professional self-regulation” (100 NY2d at 96).

The majority attempts to distinguish this case from Wieder. However, the purportedly material distinctions identified fail to appropriately take into account the principles we expounded upon in Wieder. The Court erroneously finds it to be relevant that Sullivan “had four other titles at Peconic” (majority op at 264). That is not a logical basis upon which to justify the different treatment of the plaintiff in Wieder as compared to Sullivan. If that were a valid distinction, then an unscrupulous employer wishing to avoid the application of the Wieder exception in a case in which it would otherwise apply would shield itself by giving any person potentially subject to the exception additional job titles and/or functions. Nothing in Wieder suggests that we intended to create such a loophole. That said, where an employee is merely peripherally responsible for informing his or her employer (or others) of violations of certain obligations, that person is unlikely to be covered by the Wieder exception. This is not such a case. Within Sullivan’s role as a compliance officer, his sole duty was to ensure compliance with the applicable provisions of law and ethical rules and Peconic was also bound to adhere to the same rules in providing services to its clients. And, of course, in order to succeed, plaintiff would have to prove that he was terminated due to his actions as Chief Compliance Officer, not in some other capacity at Peconic.

Perhaps the majority’s emphasis on Sullivan’s multiple roles is drawn from the language of our decision in Horn, where we implicitly recognized that the plaintiff doctor’s primary job function was not the ethical and lawful provision of medical treatment to New York Times employees, but rather that her main role was to “ apply[ ] her professional expertise in furtherance of her responsibilities as a part of corporate management” (100 NY2d at 95). However, it cannot similarly be said that Sullivan’s primary role as Chief Compliance Officer was anything other than to ensure the ethical and lawful provision of investment adviser services. In Horn, we noted that “Horn was employed as the Associate Medical Director of the Times’ in-house Medical Department, where whatever medical care and treatment she rendered was provided only to fellow employees and only as directed by her employer” and that she alleged that she was responsible for determining whether “injuries suffered by Times employees were work-related, thus making the employees eligible for Worker’s Compensation payments” (Horn, 100 NY2d at 95 [internal quotation marks omitted]). We found that “[w]hen Horn made assessments as to whether a Times employee had suffered a work-related illness or injury, she was surely calling upon her knowledge as a physician, but not just for the benefit of the employee” (id.). Here the Chief Compliance Officer position was created in order to protect Peconic’s clients from ethical and legal violations. Additionally, Peconic had the same responsibility to its clients as did Sullivan. In Horn, the New York Times may have had certain responsibilities to its employees, but it was not a provider of medical services and it was therefore not subject to the same rules and regulations governing the relationship between physicians and patients.

Much is made of the fact that Sullivan was not a member of a firm of compliance officers (see majority op at 264), leading to the erroneous conclusion that he was not situated similarly to the plaintiff in Wieder, who was an attorney working for a firm of attorneys. The plaintiff in Wieder was an employee of a business that represented clients and was bound to follow certain stringent legal and ethical rules. Similarly, Sullivan was an employee of a business that was subject to certain legal and ethical obligations to its clients and his reason for being, as a compliance officer, was to ensure that in providing services to those clients, those rules were followed at all times.

The majority suggests that, going forward, employees in Sullivan’s position can look to federal whistleblower protections. But the common law should protect compliance officers from retaliatory termination from the inception of their investigations into suspected wrongdoing, even before they make any reports to the government, without the need for recourse to federal statutes or, for that matter, to state statutes.

The Court’s decision concludes that “[n]othing in federal law persuades us that we should change our own law to create a remedy where Congress did not” (majority op at 265). The clear implication of this statement is that in order for hedge fund compliance officers to be entitled to the same protections as attorneys working in law firms, these protections must be conferred by statute. This approach creates a problem for legislators to solve where none existed previously. Prior to today, it was unnecessary for either Congress or this State’s Legislature to create a new rule to protect employees like Sullivan. The at-will employment doctrine and the Wieder exception, both of which are creatures of common law, provide clear guidance. Rather than alluding to the possible creation of a new statutory remedy, this Court should instead properly apply Wieder.

The majority unwisely limits the exception to the at-will employment doctrine that we identified in Wieder. In so doing, it creates a great potential for abuse in the financial services industry. I respectfully dissent and would reinstate the second cause of action in the complaint.

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

Order affirmed, etc.

      . This allegation is included in Sullivan’s complaint. Sullivan also alleges that he relied on and was bound by Peconic’s internal code of ethics when he “refus[ed] to engage in securities violations” and instead chose to speak out about certain trades he alleges were “improper [and] apparently illegal.” Specifically, the complaint alleges that by making these trades, Harnisch violated a provision in the code of ethics prohibiting Peconic from “ ‘taking advantage of investment opportunities belonging to a client without recommending or effecting a suitable transaction in that security for the client.’ ”

      . Pursuant to 17 CFR 275.206(4)-7 (a), (c), a registered investment adviser must designate a chief compliance officer.

      . It is noteworthy that in Wieder, we were cognizant of the problems inherent in a contractual relationship wherein a person requires another to carry out certain tasks and then proceeds to prevent that person from completing those duties: “when A and B agree that B will do something it is understood that A will not prevent B from doing it. The concept is rooted in notions of common sense and fairness” Wieder, 80 NY2d at 637). We found that “tj]ust such fundamental understanding, though unexpressed, was inherent in the relationship between plaintiff and defendant law firm” (id.). That is no less true of the relationship between a compliance officer and a hedge fund.


author: Smith, J.

text:
    [969 NE2d 751, 946 NYS2d 533]
    The People of the State of New York, Respondent, v Scott Liden, Appellant.
    Argued March 19, 2012;
    decided May 3, 2012

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Robert C. Newman, Steven Banks and William D. Gibney of counsel), for appellant.
    I. The risk level hearing court has the authority to decide that an alleged out-of-state sex offender is not required to register under the statute. (People v Correa, 15 NY3d 213; People v Burden, 6 Misc 3d 1033[A], 2005 NY Slip Op 50286[U]; People v Kennedy, 20 AD3d 137, 7 NY3d 87; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Nadel, 188 Misc 2d 427; Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303; People v Kearns, 95 NY2d 816; Matter of Mandel, 293 AD2d 750; People v Carabello, 309 AD2d 1227; Stahlbrodt v Commissioner of Taxation & Fin. of State of N.Y., 171 Misc 2d 571.) II. In this case, where appellant took an Alford plea to a lesser offense following a trial at which the jury could not agree on a verdict, the unsworn transcript of the alleged victims’ interviews with police were not “reliable hearsay” upon which the risk level court could rest its determination. (Crawford v Washington, 541 US 36; People v Hill, 16 NY3d 811; People v Mingo, 12 NY3d 563; People v Arotin, 19 AD3d 845; Matter of Parker, 11 Misc 3d 252.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Malancha Chanda and Eleanor J. Ostrow of counsel), for respondent.
    I. Under the plain language of Correction Law § 168-k, the risk-assessment court had no jurisdiction to review the board’s determination that defendant was required to register as a sex offender in New York. (Jones v Bill, 10 NY3d 550; Matter of Polan v State of N.Y. Ins. Dept., 3 NY3d 54; Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Riley v County of Broome, 95 NY2d 455; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98; Rangolan v County of Nassau, 96 NY2d 42; Sohn v Calderon, 78 NY2d 755; People v Stevens, 91 NY2d 270; Doe v Pataki, 120 F3d 1263; People v Cuadrado, 9 NY3d 362.) II. The court’s adjudication of defendant as a level three sex offender was based on reliable hearsay and was entirely proper. (People v Pettigrew, 14 NY3d 406; People v Mingo, 12 NY3d 563; Crawford v Washington, 541 US 36; People v Burden, 6 Misc 3d 1033[A], 2005 NY Slip Op 50286[U]; People v Willette, 67 AD3d 1259; People v Arotin, 19 AD3d 845; Matter of Parker, 11 Misc 3d 252.)

      Eric T. Schneiderman, Attorney General, New York City (Claude Platton, Barbara D. Underwood and Richard Dearing of counsel), for Board of Examiners of Sex Offenders, amicus curiae.
    I. The Board of Examiners of Sex Offender’s determination that an out-of-state offender must register under the Sex Offender Registration Act is reviewable only in a CPLR article 78 proceeding. (Yatauro v Mangano, 17 NY3d 420; Appleton Acquisition, LLC v National Hous. Partnership, 10 NY3d 250; Sohn v Calderon, 78 NY2d 755; People v Williams, 24 AD3d 894; People v Carabello, 309 AD2d 1227; Matter of Mandel, 293 AD2d 750; Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367; Doe v Pataki, 3 F Supp 2d 456.) II. The principle of constitutional avoidance does not apply here. (Matter of Jacob, 86 NY2d 651; Mathews v Eldridge, 424 US 319; People v David W, 95 NY2d 130; Connecticut Dept. of Public Safety v Doe, 538 US 1; Matter of Dewine v State of N.Y. Bd. of Examiners of Sex Offenders, 89 AD3d 88; Matter of Smith v Devane, 73 AD3d 179; Matter of Bush v New York State Bd. of Examiners of Sex Offenders, 72 AD3d 1078; Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745; Cleburne v Cleburne Living Center, Inc., 473 US 432; FCC v Beach Communications, Inc., 508 US 307.)
   OPINION OF THE COURT

Smith, J.

Rulings of administrative agencies can ordinarily be reviewed only in proceedings under CPLR article 78. We hold, however, that the unusual features of New York’s sex offender registration system justify an exception to that rule: A determination by the Board of Examiners of Sex Offenders that a person who committed an offense in another state must register in New York is reviewable in a proceeding to determine the offender’s risk level.

I

Defendant was charged in the State of Washington with raping and kidnapping two teenaged girls. In 1996, he resolved those charges by pleading guilty to two counts of unlawful imprisonment. He later moved to New York, where he was convicted of a nonsexual crime. This conviction apparently brought his previous record to the attention of the Board of Examiners of Sex Offenders, which determined in 2007 that, because of his Washington conviction, he was required to register under New York’s Sex Offender Registration Act (SORA). Defendant did not seek article 78 review of that determination before the time to seek such relief expired.

Having determined that defendant must register, the Board, as SORA requires, made a recommendation to Supreme Court in the county of defendant’s residence as to the risk level that should be assigned to him (see Correction Law § 168-k [2]). The Board recommended risk level three, which reflects a high risk of a repeat offense (see Correction Law § 168-Z [6] [c]).

In submissions to the court considering his risk level, defendant argued that he should not have been required to register as a sex offender at all. Defendant pointed out that unlawful imprisonment in the second degree—the New York crime corresponding to the Washington crime of which defendant was convicted—is a misdemeanor (see Penal Law § 135.05). Until 2002, a crime committed in another state was defined as a “sex offense” in New York only if it included “all of the essential elements” of a New York “felony” (see former Correction Law § 168-a [2] [b] [amended by L 2002, ch 11, § 1]). The 2002 amendment, which replaced the word “felony” with the word “crime” (Correction Law § 168-a [2] [d]), applied only to offenses committed on or after its effective date (L 2002, ch 11, § 24). The People now concede that defendant’s argument was well-founded, and that the Board’s determination requiring him to register was an error.

Supreme Court held, however, that it did not “have jurisdiction to review” the Board’s determination. Supreme Court believed itself bound by several Appellate Division decisions holding that a determination of registrability may be challenged only in an article 78 proceeding (see Matter of Mandel, 293 AD2d 750 [2d Dept 2002]; People v Carabello, 309 AD2d 1227 [4th Dept 2003]; People v Williams, 24 AD3d 894 [3d Dept 2005]). In a later order, Supreme Court adjudicated defendant a level three sex offender. The Appellate Division affirmed, agreeing with the other Appellate Division departments that “a person seeking review of the Board’s determination that he or she is obligated to register in the first place is required to bring an article 78 proceeding against the Board” (People v Liden, 79 AD3d 598 [1st Dept 2010]). We granted leave to appeal (16 NY3d 872 [2011]), and now reverse.

II

The procedure for registration of sex offenders who move to New York from other states is set out in Correction Law § 168-k. Section 168-k (2) says, in relevant part:

“The [Board of Examiners of Sex Offenders] shall determine whether the sex offender is required to register with the [Division of Criminal Justice Services]. If it is determined that the sex offender is required to register . . . the board shall. . . make a recommendation regarding the level of notification . . . This recommendation . . . shall be submitted by the board to the county court or supreme court and to the district attorney in the county of residence of the sex offender and to the sex offender. It shall be the duty of the county court or supreme court in the county of residence of the sex offender ... to determine the level of notification.”

Thus the statute assigns the registrability determination to the Board, and the risk level (“level of notification”) determination to the court: The Board “shall determine” whether the out-of-state sex offender is required to register, but shall only “make a recommendation” as to the risk level; it is “the duty of the court” to determine the risk level. (By contrast, when a sex offense is committed in New York, both registrability and risk level are decided by a court [see Correction Law § 168-d (1) (a); § 168-n (2)].) The statute does not address the question of how an alleged sex offender from another state who thinks the Board has erred in determining that he is required to register may seek judicial review.

The usual way to obtain judicial review of the action of an administrative agency is a proceeding under CPLR article 78 (“Proceeding Against Body or Officer”). Article 78 proceedings are subject to a four-month statute of limitations, running from the time when “the determination to be reviewed becomes final and binding” (CPLR 217 [1]). We have held that a person challenging an agency determination cannot circumvent the time limitation, or other limitations on article 78 review, by asserting his or her arguments in a different kind of proceeding (see Solnick v Whalen, 49 NY2d 224, 229-230 [1980]; New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 201 [1994]; Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194 [2007]; cf. Sohn v Calderon, 78 NY2d 755, 767 [1991]). Article 78 normally provides what is in effect an exclusive remedy. We are persuaded, however, that this case calls for an exception to that rule of exclusivity.

An unusual, perhaps unique, feature of a Board determination under Correction Law § 168-k (2) is that, when the determination is adverse to the person affected, a judicial proceeding automatically follows. In every such case, the Board must make a recommendation to a court in the county of the offender’s residence, and the court then must determine the alleged sex offender’s risk level. Where the initial determination that the person must register is disputed, plainly the most efficient course is for the risk level court to resolve the dispute; to have two separate courts examine essentially the same facts—one to decide registrability in an article 78 proceeding, and the other to decide risk level—serves no purpose. Recognizing this, a number of trial level courts have held—in contrast to the Appellate Division holdings we cited above—that registrability can be considered in the risk level proceeding (Matter of Nadel, 188 Misc 2d 427 [Sup Ct, NY County 2001, Richter, J.]; People v Godbolt, 2002 NY Slip Op 40201[U] [Sup Ct, Queens County 2002]; People v Gundel, 2002 NY Slip Op 40012[U] [Dutchess County Ct 2002]).

To allow the risk level court to decide the registrability issue is not just a more efficient way to proceed; it is good policy in other ways. At the time the Board makes its registrability determination, the person alleged to be a sex offender will often be without a lawyer; a lawyer will be appointed for him in the risk level proceeding, but the article 78 statute of limitations might run before the lawyer is appointed, or has had a chance to focus on the registrability issue. And to bar the risk level court from examining registrability may put that court in the uncomfortable position of deciding the risk level of someone who, the court is convinced, is not a sex offender within the meaning of the statute at all.

Policy reasons like these would not, in the ordinary case, justify an exception to the rule that limits litigants to article 78 review. In all but rare cases, the need for orderly and efficient procedure will require adherence to that rule. An exception is justified here, however, where orderliness and efficiency, as well as other goals, are served by it.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the Board’s determination that defendant is required to register as a sex offender annulled.

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

Order reversed, etc.