author: Abdus-Salaam, J. Stein, J.

text:
    [35 NE3d 451, 14 NYS3d 283]
    Viviane Etienne Medical Care, P.C., as Assignee of Alem Cardenas, Respondent, v Country-Wide Ins. Co., Appellant.
    Argued April 28, 2015;
    decided June 10, 2015

      POINTS OF COUNSEL

      Thomas A. Torto, New York City, and Jaffe & Koumourdas, LLP, New York City, for appellant.
    On a motion for summary judgment, a no-fault provider must, in the first instance, submit evidence in admissible form in order to make out a prima facie case, even if the insurer is precluded from raising a defense. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Alvarez v Prospect Hosp., 68 NY2d 320; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742; Art of Healing Medicine,

      P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854.)

      Gary Tsirelman, P.C., Brooklyn (David M. Gottlieb, Gary Tsirelman and Stefan M. Belinfanti of counsel), for respondent.
    Viviane Etienne Medical Care, P.C. established its prima facie case with admissible evidence. (Fleisher v City of New York, 120 AD3d 1390; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8; Devonshire Surgical Facility v American Tr. Ins. Co., 31 Misc 3d 128[A], 2011 NY Slip Op 50511 [U]; Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659.)

      Short & Billy, PC, New York City (Gregory Guido and Skip Short of counsel), for American Transit Insurance Company and others, amici curiae.
    I. The case before the Court arises under a prior version of the no-fault regulations. (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313; Pommells v Perez, 4 NY3d 566.) II. The plaintiff in this case did not use the preferred legislative forum and should not have a lesser burden of proof. (Auto One Ins. Co. v Hillside Chiropractic, P.C., 126 AD3d 423; Country-Wide Ins. Co. v Harnett, 426 F Supp 1030; Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260.) III. A no-fault applicant who chooses to file a claim in court should be subject to the same evidentiary burdens as other litigants. (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211; Goldberg v Corcoran, 153 AD2d 113; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Clemens v Apple, 65 NY2d 746; Oquendo v New York City Tr. Auth., 246 AD2d 635; Parker v Defontaine-Stratton, 231 AD2d 412; Khalil v Marion, 200 AD2d 500; Seminara v Grossman, 253 AD2d 420; Pommells v Perez, 4 NY3d 566.)
   OPINION OF THE COURT

Abdus-Salaam, J.

This appeal requires us to determine what proof a plaintiff medical provider must advance to make a prima facie showing of entitlement to summary judgment in a no-fault insurance action. We hold that a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer. Proof evincing the mailing must be presented in admissible form, including, where it is applicable, meeting the business records exception to the hearsay rule. Applying this rule to the facts of this case, plaintiff demonstrated entitlement to summary judgment. Therefore, the order of the Appellate Division should be affirmed, insofar as appealed from, and the certified question answered in the affirmative.

L

Following an automobile accident in June 2004, Alem Cardenas received treatment for his injuries at the office of plaintiff Viviane Etienne Medical Care, P.C. Cardenas’s automobile liability insurance policy with defendant Country-Wide Insurance Company contained a New York State no-fault endorsement. Cardenas assigned his right to receive no-fault benefits to plaintiff. To receive reimbursement for the services it rendered to Cardenas, plaintiff submitted to defendant eight verification of treatment forms demonstrating the services rendered or equipment provided, and the corresponding cost. Each form was signature stamped with “V Etienne MD.” Within 15 days from receipt of the verification of treatment form, an insurer may seek further verification (see 11 NYCRR 65-3.5 [b]) and within 30 days after receiving the verification of treatment form, the insurer must pay or deny the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). Defendant denied payment on one claim in the amount of $139 dated November 17, 2004. Defendant did not respond to any of the other claims.

Plaintiff commenced this action seeking to recover no-fault insurance benefits, asserting that it timely submitted bills and claims for payment to defendant in the amount of $6,130.70, but defendant had yet to make any payments, deny the requests, or ask for verification of the claims. Plaintiff also requested interest and attorney’s fees under the Insurance Law. Defendant answered and asserted as an affirmative defense that payment for plaintiff’s claims was not overdue because plaintiff failed to submit “proper proof of the fact and amount of loss” as required by the Insurance Law.

Plaintiff moved for summary judgment on its claims, arguing that it had met its prima facie burden of showing the fact and amount of loss sustained, and that the payment of the benefits was overdue. As support, plaintiff submitted the aforementioned eight verification of treatment forms as proof of claim, along with seven mailing ledgers stamped by the United States Postal Service indicating the date the forms were mailed, and the denial of claim form. Additionally, plaintiff submitted the affidavit of Roman Matatov, President of SUM Billing Corp. (SUM Billing), a third-party billing company hired by plaintiff.

In the affidavit, Matatov explained the company’s billing procedures. The medical providers must submit an assignment of benefits form signed by the injured party along with the injured party’s identification prior to SUM Billing sending out the verification of treatment forms to the insurance companies for reimbursement. Matatov personally obtains the insurance cards and police reports pertaining to the accident. He incorporates all the above documents into SUM Billing’s records and relies upon them in the performance of his business. In generating the verification of treatment forms, Matatov requires the medical providers to submit to SUM Billing all information necessary to complete the forms and sees that any missing information is obtained from the providers. Matatov then enters all the information to be included in the verification of treatment form into a custom-designed software system that creates the completed forms. Matatov averred that after the forms are created, he logs the bills into a mailing ledger, and personally mails the bills to the insurance company. The mailing ledger is stamped by the United States Postal Service. Matatov stated that he “retain[s] sole responsibility for the mailing of the documents created by [SUM Billing], and [he] personally inspect [s] and verifies] the accuracy and completeness of every envelope set to leave the office.” The affidavit also described the eight proof of claim forms that plaintiff submitted with its motion for summary judgment. Matatov affirmed that consistent with the described procedures, he mailed the eight proof of claim forms to defendant.

Defendant opposed the motion, arguing that plaintiff failed to meet its prima facie burden as it did not put forth evidence in admissible form, because all of plaintiff’s exhibits were hearsay with no applicable exception. It asserted that Matatov’s affidavit did not provide sufficient foundation for the admission of the hearsay under the business records exception because the affidavit “merely state [d] the bills were mailed” but gave no other details required to meet the business records exception under CPLR 4518 (a).

Civil Court denied plaintiff’s motion for summary judgment “for failure to establish a prima facie case.” The Appellate Term, for the Second, Eleventh and Thirteenth Districts, affirmed (31 Misc 3d 21 [2011]). Relying on the Second Department’s decision in Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (55 AD3d 644 [2d Dept 2008]), the Appellate Term held that Matatov’s affidavit failed to lay a sufficient foundation for the business records hearsay exception. Specifically, the court stated that the “affidavit failed to demonstrate that [Matatov] ha[d] personal knowledge of plaintiff’s practices and procedures and that he [was] competent to testify about those practices and procedures” and alternatively failed to demonstrate that SUM Billing “incorporated plaintiff’s medical records into its own and relied upon them” (31 Misc 3d at 24, 25).

Insofar as relevant here, the Appellate Division, with two Justices dissenting, granted plaintiff’s motion for summary judgment with respect to all the claims that were not timely denied by the insurer (114 AD3d 33 [2013]). The Court declined to follow its decision in Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (55 AD3d 644 [2d Dept 2008]), wherein it held that the plaintiffs there “failed to establish their prima facie entitlement to judgment as a matter of law” because “[t]he plaintiffs’ medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule” (id. at 644). The Court concluded that “Art of Healing constitutes an anomaly, a jurisprudential drift from [the] Court’s well-established precedent” (114 AD3d at 44, 45).

The Court stated:

“We reaffirm the long-standing precedent that, in this context, the plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidence, in admissible form, that the prescribed statutory billing forms were mailed to and received by the defendant insurer, which failed to either pay or deny the claim within the prescribed 30-day period” (114 AD3d at 35).

Applying that standard, the Appellate Division determined that, with the exception of the claim that was denied, plaintiff established prima facie entitlement to summary judgment as a matter of law “by demonstrating that its prescribed statutory billing forms used to establish proof of claim were mailed to and received by the defendant and that . . . defendant failed to either timely pay or deny the claims” (id. at 46 [citation omitted]). The Court determined that defendant in opposition failed to raise a triable issue of fact because it was precluded from raising the defense that the proof of claim forms were inadmissible under the business records exception to hearsay as it did not deny the claim within the statutory time frame (id. at 47).

The Appellate Division remitted the case to Civil Court to determine whether plaintiff was entitled to statutory interest and attorney’s fees. Thereafter, the Court granted defendant’s motion for leave to appeal to this Court, certifying the question of whether its determination was properly made.

II

The Comprehensive Motor Vehicle Insurance Reparations Act, commonly referred to as the “No-Fault Law” (see Insurance Law art 51) is aimed at ensuring “prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003], citing Governor’s Mem approving L 1973, ch 13, 1973 McKinney’s Session Laws of NY at 2335). This Court has recognized the complicated nature of the statutory and regulatory scheme of the No-Fault Law (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997] [describing the scheme as a “ ‘Rube-Goldberg-like maze’ ”]). In Fair Price Med. Supply Corp. v Travelers Indem. Co., we described the no-fault regime as follows:

“ ‘The[ ] regulations require an accident victim to submit a notice of claim to the insurer as soon as practicable and no later than 30 days after an accident (see 11 NYCRR 65-1.1, 65-2.4 [b]). Next, the injured party or the assignee . . . must submit proof of claim for medical treatment no later than 45 days after services are rendered (see 11 NYCRR 65-1.1, 65-2.4 [c]). Upon receipt of one or more of the prescribed verification forms used to establish proof of claim, ... an insurer has 15 business days within which to request “any additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]). An insurer may also request “the original assignment or authorization to pay benefits form to establish proof of claim” within this time frame (11 NYCRR 65-3.11 [c]). Significantly, an insurance company must pay or deny the claim within 30 calendar days after receipt of the proof of claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). If an insurer seeks additional verification, however, the 30-day window is tolled until it receives the relevant information requested (see 11 NYCRR 65-3.8 [a] [1])’ ” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 562-563 [2008], quoting Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106 [a]).

Where an insurer fails to pay or deny a claim within the requisite 30 days under the statute and regulations following its receipt of the proof of claim, the insurer is subject to “substantial consequences,” namely, preclusion “from asserting a defense against payment of the claim” (Fair Price, 10 NY3d at 563 [internal quotation marks omitted]). The only exception to preclusion recognized by this Court arises where an insurer raises lack of coverage as a defense (see id.; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). This Court has recognized that preclusion may require an insurer to pay a no-fault claim it might not have had to honor if it had timely denied the claim (see Presbyterian Hosp., 90 NY2d at 285). Nonetheless, we emphasized that the great convenience of “prompt uncontested, first-party insurance benefits” is “part of the price paid to eliminate common-law contested lawsuits” (id.; see Fair Price, 10 NY3d at 565-566).

Prior to Art of Healing and following its abandonment, the Second Department has held that

“[i]n an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed to and received by the relevant insurance carrier, and that payment of no-fault benefits was overdue” (Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082 [2d Dept 2011]; see New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 648 [2d Dept 2014]).

Other Appellate Division Departments have adopted the Second Department’s approach and articulated the same standard (see e.g. Sunshine Imaging Assn. / WNY MRI v Government Empls. Ins. Co., 66 AD3d 1419, 1420 [4th Dept 2009]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313, 314 [1st Dept 2008]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728 [3d Dept 2006]).

We agree with the Appellate Division Departments that a summary judgment motion in a no-fault insurance case where the benefits are overdue requires proof that the statutory claim forms were mailed to and received by the insurer. The legislative design of the no-fault insurance scheme demonstrates an interest in prompt resolution of reimbursement claims, a desire to avoid litigation, and statutory consequences on an insurer to incentivize it to seek verification of a claim, deny it, or pay. As this Court has stated:

“No-fault reform was enacted to provide prompt uncontested, first-party insurance benefits. That is part of the price paid to eliminate common-law contested lawsuits. . . . The tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices” (Presbyterian, 90 NY2d at 285 [citation omitted]; see Hospital for Joint Diseases, 9 NY3d at 320).

Consistent with these interests, a medical provider seeking reimbursement from a no-fault insurer demonstrates its entitlement to reimbursement of overdue benefits when it proves that it submitted a completed claim form to the insurer. A claim is overdue if it is not denied or paid within 30 days of the insurer’s receipt of proof of claim (see 11 NYCRR 65-3.8 [a] [1]; Insurance Law § 5106 [a]). Thus, it follows that a claim is not overdue when it is timely denied by the insurer.

The requisite proof in a no-fault insurance case is “proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]). To establish entitlement to summary judgment on overdue no-fault benefits, the medical provider is required to submit proof of mailing through evidence in admissible form. Such proof may include the verification of treatment form and/or an affidavit from a person or entity (1) with knowledge of the claim and how it was sent to the insurer or (2) who has relied upon the forms in the performance of their business. Thus, even where an insurer is precluded from raising a defense to the proof of claim form because of its failure to timely deny the claim, the plaintiff medical provider must, as an initial matter, demonstrate its entitlement to summary judgment by submission of proof in admissible form.

Admissible evidence may include “affidavits by persons having knowledge of the facts [and] reciting the material facts” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Certain affidavits and documents submitted in support of a motion for summary judgment may be deemed admissible where those documents meet the requirements of the business records exception to the rule against hearsay under CPLR 4518 (see e.g. JPMorgan Chase Bank, NA. v Clancy, 117 AD3d 472, 472 [1st Dept 2014]; Education Plus, Inc. v Glasser, 112 AD3d 1125, 1125-1126 [3d Dept 2013]; Melendez v 176 Hopkins Assoc., LP, 28 AD3d 723, 723 [2d Dept 2006]). CPLR 4518 (a) provides:

“Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.”

m.

Applying these principles to the instant facts, the Appellate Division properly determined that plaintiff met its prima facie summary judgment burden. As relevant here, to support its motion, plaintiff submitted the eight verification of treatment forms and Matatov’s affidavit. The documents submitted by plaintiff meet the business records exception to the hearsay rule.

Matatov’s affidavit states that based on his business agreement with plaintiff, SUM Billing created the verification of treatment forms in the regular course of its business and that the forms were created soon after the services were provided by plaintiff to Cardenas. Indeed, the tight timetable of the no-fault scheme requires prompt submission of proof of claim in order to receive reimbursement. Matatov’s affidavit outlines the office practices and procedures used by SUM Billing to mail claim forms to insurers and demonstrates that Matatov himself mails the forms. Matatov explained that SUM Billing relies on these forms in the performance of its business. Further, the affidavit states how and when the forms at issue here were created and that they were mailed to defendant within the statutory time frame. Thus, as plaintiff was able to demonstrate SUM Billing’s office mailing practices and procedures, “a presumption arises that those notices have been received by the insurers]” (Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]). It is undisputed that defendant did not pay or deny seven out of the eight claims at issue. Consequently, those claims are overdue. Plaintiff, therefore, satisfied its burden on summary judgment by demonstrating the mailing of the proof of claim forms, and their receipt by the insurer.

The Appellate Division also properly determined that defendant failed to raise a triable issue of fact in opposition. In fact, defendant concedes that it is precluded from raising any defense due to its failure to timely deny the claims.

Contrary to the dissent’s contention, the risk of an insurer paying out fraudulent claims has been recognized by this Court (see Presbyterian Hosp., 90 NY2d at 285); however, as we have stated that risk is part of the price paid for swift, uncontested resolution of no-fault claims. Where no-fault benefits are not overdue, because of timely denial, the insurer’s compliance with the statute and regulations allows it to retain its right to contest the claims and prevent payment of fraudulent claims. An insurer providing no-fault benefits may not simply sit on its hands until litigation is commenced. Some action is required.

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

Stein, J.

(dissenting). The majority holds that a plaintiff medical provider in a no-fault case establishes prima facie entitlement to summary judgment by demonstrating that the insurer was billed and failed to timely deny or pay the billed claim. In my view, neither the statutory and regulatory no-fault scheme, nor our cases concerning the preclusion doctrine, obviate a plaintiff’s burden to demonstrate its prima facie entitlement to benefits sought, as compared to only proof of billing and nonpayment. I, therefore, respectfully dissent.

Pursuant to the statutory no-fault scheme, automobile insurance policies must provide for the payment of first party benefits to certain persons “for loss arising out of the use or operation in this state of [a] motor vehicle” (Insurance Law § 5103 [a] [1]; see 11 NYCRR 65-1.1). Stated simply, first party benefits are capped “payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle” (Insurance Law § 5102 [b]; see Insurance Law § 5102 [a]). Covered expenses include those incurred for “necessary” medical services (Insurance Law § 5102 [a] [1]). Thus, to establish entitlement to no-fault benefits for medical services, a party must demonstrate that the loss arose from an automobile accident and that the expenses incurred were medically necessary.

Under the detailed no-fault regulations implementing the Insurance Law, a claimant must submit a notice of claim to the insurer as soon as reasonably practicable, but no later than 30 days after the accident (see 11 NYCRR 65-1.1, 65-2.4 [b]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 562-563 [2008]). If the claimant receives medical services, the claimant — or his or her assignee — must submit written proof of claim for that treatment to the insurer within 45 days of the provision of services (see 11 NYCRR 65-1.1, 65-2.4 [c]). This proof of claim must include “full particulars of the nature and extent of the injuries and treatment received and contemplated” (11 NYCRR 65-1.1 [d]). Upon receipt of a prescribed verification form, the insurer has 15 business days to request “any additional verification required ... to establish proof of claim” (11 NYCRR 65-3.5 [b]; Fair Price, 10 NY3d at 563).

As particularly relevant here, an insurer must pay or deny a claim, in whole or in part, within 30 calendar days of receipt of the proof of claim or any additional verification requested (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). The majority accurately states that a failure to do so carries “substantial consequences” (.Hospital for Joint Diseases, 9 NY3d at 317). Namely, pursuant to Insurance Law § 5106 (a), a failure to pay or deny benefits within 30 days of receipt of “proof of the fact and amount of loss sustained” renders benefits “overdue,” and all overdue payments bear interest at a rate of 2% per month (see 11 NYCRR 65-3.8 [a] [1]; Hospital for Joint Diseases, 9 NY3d at 317-318). Further, a claimant is entitled to recover attorney’s fees for overdue payments (see Insurance Law § 5106 [a]). In addition to the statutory penalties, we have held that a failure to timely pay or deny a claim will result in an insurer being precluded from interposing a defense against payment of the claim, except where the defense raised is lack of coverage (see Fair Price, 10 NY3d at 563-565; Hospital for Joint Diseases, 9 NY3d at 318-319; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 283 [1997]).

Defendant Country-Wide Insurance Company readily concedes that, assuming that plaintiff Viviane Etienne Medical Care, P.C., has met its prima facie burden of showing entitlement to payment of its claims, the statutory penalties are applicable and defendant is precluded from raising a defense due to its failure to timely pay or deny the claims. The majority holds that, because these penalties are applicable to plaintiff’s claims, plaintiff is entitled to judgment based on its showing of proof of billing, receipt, and nonpayment. I, however, find no basis to conclude that any of the aforementioned penalties that may be imposed against defendant obviate plaintiff’s burden to make a prima facie showing of entitlement to benefits — i.e., that the loss arose from an automobile accident and that the expenses incurred were medically necessary — a showing that defendant would then be precluded from challenging.

As indicated by the lack of a direct citation to any statutory authority for the majority’s position, no language in the Insurance Law or the relevant regulations compels the conclusion that the legislature intended to excuse a no-fault plaintiff from demonstrating entitlement to benefits as a penalty to the insurer. The Insurance Law does not provide that, because benefits are “overdue” and the insurer is therefore subject to certain enumerated repercussions, a plaintiff need not proffer admissible evidence establishing the basic elements of a no-fault claim. Rather, the rule now adopted by the majority— that only proof of billing and the absence of timely denial or payment are required to obtain reimbursement — was derived by the Appellate Division Departments from our cases creating and defining the preclusion rule (see e.g. Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082 [2d Dept 2011], citing Presbyterian Hosp., 90 NY2d 274; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020 [2d Dept 2007], citing Presbyterian Hosp., 90 NY2d 274). In my view, the extension of the preclusion doctrine established by the majority in this case is misguided because our preclusion cases did not effectuate a change to a plaintiff’s burden on summary judgment.

It is well established that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In other words, “ ‘[t]o obtain summary judgment it is necessary that the movant establish [a] cause of action . . . “sufficiently to warrant the court as a matter of law in directing judgment” in [the movant’s] favor (CPLR 3212, subd [b]), and [the movant] must do so by tender of evidentiary proof in admissible form’ ” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980], quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; see Bush v St. Clare’s Hosp., 82 NY2d 738, 739 [1993]). “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez, 68 NY2d at 324). Applying these uncontroverted principles here, the preclusion rule, which prevents an insurer from raising most defenses to a no-fault claim, comes into play only after the plaintiff’s prima facie case has been demonstrated. That is, the preclusion doctrine has no application to the facts before us because defendant seeks only to hold plaintiff to its initial summary judgment burden.

While proof of billing and the absence of timely denial or payment may be required in order to invoke the preclusion rule, we have never held that such proof constitutes a prima facie showing of entitlement to judgment in a no-fault plaintiff’s favor. In fact, the State Insurance Department has interpreted the interplay between summary judgment and the preclusion rule in exactly the manner I propose, taking the view that, “[t]hough an insurer’s defense to payment of claim may be precluded under the [preclusion] cases, . . . the claimant must still meet the statutory requisite and make out a prima facie case of entitlement to benefits,” which requires that “reimbursable expenses must arise out of a motor vehicle accident and be medically necessary to treat the injuries” (Ops Gen Counsel NY Ins Dept No. 00-01-02 [Jan. 2000]). Likewise, while we held that the insurer in Hospital for Joint Diseases was precluded from contesting the validity of a signature on an assignment form, we separately addressed the insurer’s challenge insofar as it implicated the plaintiff’s burden to demonstrate a prima facie case (see 9 NY3d at 319-320). Unlike our approach in that case, the majority now conflates the preclusion rule with the summary judgment burden, effectively eviscerating our long-settled summary judgment principles in the no-fault context despite the absence of any such direction from the legislature.

The practical effect of the majority’s holding today is that courts lack authority to verify that a no-fault plaintiff has established the basic facts supporting a claim prior to awarding judgment, which is a result inconsistent with our summary judgment rules and, indeed, is not one endorsed even with respect to defaulting defendants (compare CPLR 3215 [f]). These rules are designed, at least in part, to prevent the perpetration of fraud upon the court. Moreover, an insurer’s duty to pay or deny a claim within 30 days is not triggered until it receives “proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]; see 11 NYCRR 65-3.8 [a] [1]). Yet, the majority’s rule arguably eviscerates any avenue for insurers to contest even whether a verification of treatment form contains sufficient information to constitute “proof of the fact and amount of loss sustained” — or in other words, whether the payments were actually overdue — since proof of the mailing of the prescribed form, without any regard to its contents or its completeness, will now carry a plaintiff’s burden on summary judgment. In a system that we have recognized as already plagued by widespread abuse (see generally Pommells v Perez, 4 NY3d 566, 571 [2005]; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861 [2003]), the majority’s rule unnecessarily increases the risk that insurers will be required to pay out fraudulent claims, which is detrimental, not only to the insurer, but also to claimants, whose entitlement to benefits (which is subject to a maximum amount) will consequently be reduced. This is a result that should not be countenanced by our judicial system, whose duty it is to fairly apply the law, and one which was not intended by either the legislature or our preclusion cases.

It also bears noting that the rationale behind the preclusion doctrine, upon which the majority implicitly relies, does not support its application here. To be sure, a “core and essential objective” of the no-fault structure “is ... to provide a tightly timed process of claim, disputation and payment” (Presbyterian Hosp., 90 NY2d at 281), and the preclusion doctrine provides an incentive for insurers to comply with the regulatory time frame. However, where, as here, the objection is to the evidentiary admissibility of the NF-3 verification of treatment forms— not to the accuracy or validity of their contents — it would be impossible for the insurer to raise the objection before the plaintiff’s summary judgment motion was brought, inasmuch as the insurer would have no way of knowing what evidentiary foundation would be offered.

Significantly, requiring a plaintiff to establish its prima facie entitlement to benefits, rather than mere proof of billing, would not place on no-fault claimants an onerous burden that would impede the timely resolution of valid claims or increase no-fault litigation. The statutory NF-3 verification of treatment form is a permissible proof of claim with respect to a non-hospital health care provider (see 11 NYCRR 65-3.11 [b]). This form contains, among other things: necessary information regarding the provider, insurer, and the insured; a space for the “diagnosis and concurrent conditions”; boxes to check, indicating when the symptoms appeared and whether they are solely a result of an automobile accident; a space for a “report of services rendered”; and an assignment of benefits section. As the Appellate Division dissenters aptly stated, plaintiff’s prima facie case on the merits “would have been satisfied here if the plaintiff had simply submitted the proof of claim forms in admissible form” (114 AD3d at 49).

However, the affidavit proffered by plaintiff to support admission of the NF-3 forms — which must be received for their truth to establish the “fact and amount of loss sustained” (Insurance Law § 5106 [a]), as should be required — falls short. Although the affidavit of Roman Matatov, the president of plaintiff’s third-party billing service, stated that he had personal knowledge of the mailing of the NF-3 forms to defendant, he had no personal knowledge of plaintiff’s record-keeping procedures or practices in creating the documents based on which he compiled those forms. Thus, Matatov was unable to lay a sufficient foundation for the admissibility of the NF-3 forms under the business records exception to the hearsay rule (see CPLR 4518 [a]; People v Brown, 13 NY3d 332, 341 [2009]; People v Cratsley, 86 NY2d 81, 90 [1995]; Matter of Leon RR, 48 NY2d 117, 122-123 [1979]), and inadmissible hearsay is insufficient to establish a prima facie case entitling plaintiff to summary judgment (see generally Zuckerman, 49 NY2d at 562). I simply do not see why it would be unduly burdensome to require plaintiff to submit a proper affidavit, either from Matatov or a knowledgeable employee of the medical provider’s practice.

In sum, in light of the absence of any explicit language in the no-fault statutes or regulations eliminating a plaintiff’s burden to establish a prima facie case of entitlement to benefits or any indication of a legislative intent to eliminate such burden, and because the preclusion doctrine is not triggered until a prima facie showing has been made, I find no basis to diverge from our traditional rules pertaining to summary judgment motions. Thus, I would conclude that proof of billing, receipt, and nonpayment is simply insufficient to carry plaintiff’s prima facie case here. Rather, plaintiff should be obligated to proffer, in accordance with the basic rules of evidence, admissible NF-3 forms to demonstrate the merits of its claims, which defendant would then be precluded from contesting. Accordingly, I would reverse the Appellate Division order.

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

Order, insofar as appealed from, affirmed, with costs, and certified question answered in the affirmative.

      . The forms used by the plaintiff are a standard form distributed by the New York State Department of Financial Services.

      . Due to an error in calculation, the reimbursement amount sought in plaintiff’s complaint was wrong. The actual total amount billed to the insurer was $6,566.46. Plaintiff moved to amend its complaint to reflect the actual amount of damages.

      . All of the courts below denied plaintiff’s motion for summary judgment on one of its claims dated November 17, 2004, in the amount of $139, as it was timely denied by the insurer. The propriety of that determination is not before this Court as plaintiff did not cross-appeal its denial.

      . The Court noted that it had relied upon Art of Healing in the context of no-fault insurance in only one case, Matter of Carothers v GEICO Indem. Co. (79 AD3d 864, 864-865 [2d Dept 2010]).

      . The dissenting Justices concurred in part and dissented in part, voting to affirm the order of Appellate Term and uphold the decision in Art of Healing.

      . Plaintiff commenced this action in September 2005, prior to adoption of the April 1, 2013 amendments to the no-fault insurance regulations, including the additions to 11 NYCRR 65-3.5 and 65-3.8. The amended regulations are not applicable to this case and, therefore, have no bearing on this decision.

      . While many of the Appellate Division decisions determining that a medical provider had submitted sufficient proof of mailing and overdue reimbursement do not describe the actual documents submitted to support the motion for summary judgment (see e.g. Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082 [2d Dept 2011]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728 [3d Dept 2006]), it appears that verification of treatment forms and/or affidavits describing the mailing are the types of documents typically considered.

       To the extent the majority implies that an insurer should routinely issue timely denials of claims or verification requests in order to preserve its right to contest those claims, it seems to me, that this approach would directly conflict with the principles of fair practice set forth in the no-fault regulations. Such regulations provide that insurers should utilize fair claims processes and refrain from demanding verification “unless there are good reasons to do so” (11 NYCRR 65-3.2 [a], [c]).


source: Caselaw Access Project

author: Fahey, J. Stein, J.

license: Public Domain

text:
    [35 NE3d 464, 14 NYS3d 296]
    The People of the State of New York, Respondent, v William Middlebrooks, Appellant. The People of the State of New York, Respondent, v Fabrice Lowe, Appellant.
    Argued May 6, 2015;
    decided June 11, 2015

      POINTS OF COUNSEL

      David C. Schopp, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies and Timothy P. Murphy of counsel), for appellant in the first above-entitled action.
    The Court should extend the holding in People v Rudolph (21 NY3d 497 [2013]) to require the sentencing court, as part of its mandatory determination on youthful offender status, to also determine the existence vel non of the factors set forth in CPL 720.10 (3) for every defendant who is not an “eligible youth.” (People v McGowen, 42 NY2d 905; People v Hudy, 73 NY2d 40; People v Flores, 116 AD3d 644; Matter of Rohallo v Smith, 63 NY2d 485; People

      v Morse, 62 NY2d 205; People v Cecil Z., 57 NY2d 899; People v Thiessen, 76 NY2d 816; People v Brodhead, 106 AD3d 1337; People v Lugo, 87 AD3d 1403; People v Crawford, 55 AD3d 1335.)

      Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty and Donna A. Milling of counsel), for respondent in the first above-entitled action.
    CPL 720.10 (3) imposes no duty on courts to rule on the existence of mitigating circumstances for ineligible youths. (People v Rudolph, 21 NY3d 497; Harrington v State of N.Y. Off. of Ct. Admin., 62 NY2d 626; People v Flores, 116 AD3d 644; People v Woullard, 115 AD3d 1053, 23 NY3d 1026.)

      Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for appellant in the second above-entitled action.
    I. The trial court failed to exercise discretion in denying youthful offender status by precluding presentation of a defense presentence report, refusing to consider any defense equities, and citing only pretextual and constitutionally impermissible reasons as a basis for denying relief. (People v Rudolph, 21 NY3d 497; Matter of Siwek v Mahoney, 39 NY2d 159; Matter of Herald Co. v Burke, 261 AD2d 92; Matter of Anthony M., 63 NY2d 270; People v Singleton, 41 NY2d 402; People v Griffin, 20 NY3d 626; People v Williams, 56 NY2d 236; People v Foy, 32 NY2d 473; People v Spears, 64 NY2d 698; People v Matz, 23 NY2d 196.) II. Mr. Fabrice Lowe was deprived of effective assistance of counsel by his attorney’s failure to object to irrelevant and prejudicial evidence, failure to object to the trial assistant’s improper summation, and failure to impeach Officer Baldwin’s trial testimony regarding the location of the weapon. (People v Baldi, 54 NY2d 137; People v Forbes, 203 AD2d 609; People v Brown, 45 NY2d 852; Strickland v Washington, 466 US 668; People v Claudio, 83 NY2d 76; People v Ennis, 11 NY3d 403; People v Benevento, 91 NY2d 708; People v Turner, 5 NY3d 476; People v Ortiz, 76 NY2d 652; People v Dinkle, 302 AD2d 1014.)

      William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for respondent in the second above-entitled action.
    I. This Court should not remand this case for resentencing. (People v Paulin, 17 NY3d 238; People ex rel. Allah v Warden, Bronx House of Detention, 38 NY2d 823; People v Gray, 86 NY2d 10; People v Samms, 95 NY2d 52; Matter of Anthony M., 63 NY2d 270; People v Spears, 64 NY2d 698;
      People v Arroyo, 161 AD2d 1127, 76 NY2d 852; People v O’Daniel, 24 NY3d 134; People v Arroyave, 49 NY2d 264; People v Perry, 36 NY2d 114.) II. Defendant received effective assistance of counsel. (People v Stultz, 2 NY3d 277; People v Baldi, 54 NY2d 137; People v Rivera, 71 NY2d 705; People v Droz, 39 NY2d 457; People v Bennett, 29 NY2d 462; People v Borrell, 12 NY3d 365; People v Satterfield, 66 NY2d 796; Strickland v Washington, 466 US 668; People v Harris, 131 AD2d 142; People v Session, 34 NY2d 254.)
   OPINION OF THE COURT

Fahey, J.

The legislature has recognized that the determination as to punishment for a youth who has committed a crime is fundamentally different from the same determination for an adult. On these appeals, we are asked to decide whether, when a defendant who would otherwise be an eligible youth has been convicted of an armed felony, the court is required to make a determination on the record as to whether one or more of the CPL 720.10 (3) factors exist and the defendant is therefore an eligible youth. Based on a plain reading of the statute and this Court’s decision in People v Rudolph (21 NY3d 497 [2013]), we hold that the court is required to make a determination on the record, even if the defendant does not request it or has agreed to forgo youthful offender treatment as part of a plea bargain.

CPL 720.10 provides that a person charged with a crime alleged to have been committed when the individual was at least 16 and less than 19 years old is a “youth” (CPL 720.10 [1]). The statute further provides that all “youth [s]” are eligible to be granted youthful offender status, with certain exceptions (see CPL 720.10 [2]). One such exception is provided for youths who have been convicted of an armed felony (see CPL 720.10 [2] [a] [ii]). CPL 720.10 (3) expressly provides, however, that a youth convicted of an armed felony is eligible to be granted youthful offender status if the court determines that there are mitigating circumstances bearing directly upon the manner in which the crime was committed, or, if the defendant was not the sole participant in the crime, that the defendant’s participation was relatively minor. It is the court’s responsibility to determine the presence or absence of these CPL 720.10 (3) factors, and thus to determine the defendant’s eligibility for youthful offender treatment, that concerns us on this appeal.

I.

People v Middlebrooks

Defendant Middlebrooks was charged with four counts of robbery for crimes he committed with one or more accomplices in 2010 when he was 18 years old. Middlebrooks pleaded guilty to all four counts in the indictment in exchange for a sentence of four maximum determinate terms of 15 years’ imprisonment, to be followed by five years’ postrelease supervision, with all terms to be served concurrently. At sentencing, although Middlebrooks brought to the court’s attention the fact that he was 18 years old when he committed the crimes, neither Middlebrooks, his counsel, nor the court mentioned youthful offender treatment. The court sentenced Middlebrooks in accordance with the plea agreement.

On appeal, the Appellate Division rejected Middlebrooks’s assertion that, pursuant to this Court’s decision in Rudolph, the sentencing court was required to make a youthful offender determination on the record. The Court reasoned that Middle-brooks was “eligible to be adjudicated a youthful offender only if the court determined that there were mitigating circumstances that bear directly upon the manner in which the crimes were committed; or . . . , inasmuch as [Middlebrooks] was not the sole participant in the crimes, that [his] participation was relatively minor” (117 AD3d 1445, 1446 [4th Dept 2014] [original brackets and internal quotation marks omitted]). The Appellate Division held that because Middlebrooks “offered no evidence of mitigating circumstances relating to the manner in which the robberies were committed, nor did he specify any facts indicating that his participation in those crimes was ‘relatively minor,’ ” he was not eligible for youthful offender treatment, and therefore “the [sentencing] court did not err in failing to make a youthful offender determination” (id. at 1446-1447). A Judge of this Court granted Middlebrooks leave to appeal (23 NY3d 1022 [2014]).

People v Lowe

Defendant Lowe was a passenger in a vehicle that was stopped by police after the driver turned without using a signal. Officers observed what they believed to be heroin on the lap of Shaquail Harris, one of the passengers in the vehicle. After ordering the four occupants out of the vehicle, police found a loaded gun underneath the driver’s seat. Lowe had been sitting behind the driver. Lowe was also 18 years old at the time.

Lowe was charged with criminal possession of a weapon in the second degree. At trial, both the driver and the fourth occupant of the vehicle testified that they had arranged to purchase heroin from Harris that night, as they had done in the past. Although the passenger “had seen [Lowe] around” before that evening, he had never seen Lowe with a gun. The driver had not met Lowe before that night. Lowe testified that the gun was not his and that he had not seen it in the car. No fingerprints were recovered from the gun. The jury found Lowe guilty as charged.

The presentence report prepared by the Probation Department stated that Lowe was eligible to be adjudicated a youthful offender and recommended that he be granted that adjudication. At sentencing, defense counsel stated that she had requested an adjournment to allow her time to obtain her own presentence report, but she had been informed that the sentencing date had been moved up by two weeks, thus preventing her from obtaining a presentence report in time for sentencing. Defense counsel requested that Lowe be granted youthful offender treatment or, in the alternative, the minimum adult sentence. Without expressly ruling on defense counsel’s request for a youthful offender adjudication, the court sentenced Lowe to 10 years’ imprisonment and five years’ postrelease supervision.

On appeal, the Appellate Division found Lowe’s sentence to be unduly harsh and severe and modified the judgment by reducing his sentence to a determinate term of five years’ imprisonment, to be followed by five years’ postrelease supervision, and otherwise affirmed (113 AD3d 1133, 1134 [4th Dept 2014]). The Court rejected Lowe’s contention, however, “that the court abused its discretion in refusing to grant him youthful offender status” {id. at 1134). A Judge of this Court granted Lowe leave to appeal (23 NY3d 1064 [2014]).

It is undisputed that both Middlebrooks and Lowe were “youths” within the meaning of CPL 720.10 (1) and had never before been convicted of a crime. It is further undisputed that both Middlebrooks and Lowe would be “[eligible youth[s]”— that is, eligible to be granted youthful offender status — but for the fact that their convictions to be replaced by youthful offender adjudications were armed felonies {see CPL 720.10 [2] [a] [ii]; 1.20 [41]). The sole issue with respect to each defendant’s youthful offender status is whether the court was required to determine on the record if he was an eligible youth due to the existence of one or more of the factors set forth in CPL 720.10 (3).

IL

Both defendants rely on our decision in Rudolph to support their contention that the court is required to make such a determination on the record. In Rudolph, the defendant had been convicted of felony drug possession and did not ask the court to adjudicate him a youthful offender. This Court noted that CPL 720.20 (1) provides that “ ‘[u]pon conviction of an eligible youth, . . . the court must determine whether or not the eligible youth is a youthful offender’ ” (21 NY3d at 501, quoting CPL 720.20 [1]). We held that “the legislature’s use of the word ‘must’ in this context . . . reflect [ed] a policy choice that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain” {id.). In so holding, we overruled People v McGowen (42 NY2d 905 [1977]).

Since Rudolph was decided, a split has developed within the Appellate Division regarding whether, when a defendant who would otherwise be an eligible youth is convicted of an armed felony, the court is required to determine on the record whether the factors set forth by CPL 720.10 (3) are present and the defendant is therefore an eligible youth. The Third Department has held that where the defendant presents no evidence of his or her relatively minor participation or of mitigating circumstances bearing directly on the manner in which the crime was committed, the court has no obligation to determine on the record whether the defendant is an eligible youth (People v Woullard, 115 AD3d 1053, 1054-1055 [3d Dept 2014], lv denied 23 NY3d 1026 [2014]). As embodied by its decision in Middle-brooks, the Fourth Department agrees (see 117 AD3d at 1446-1447).

The First Department, however, disagrees with the post-Rudolph approach taken by the Third and Fourth Departments. In People v Flores (116 AD3d 644 [1st Dept 2014]), the Court wrote:

“Although defendant was convicted of an armed felony, he still could have received a youthful offender adjudication if the court had made the applicable findings under CPL 720.10 (3). As the Court noted in Rudolph, there may be ‘cases in which the interests of the community demand that youthful offender treatment be denied, and that the young offender be sentenced like any other criminal; . . . but the court must make the decision in every case’ (21 NY3d at 501). Thus, because defendant was eligible for youthful offender consideration, if any of the factors in CPL 720.10 (3) were found to exist, the court had to make a determination even though defendant did not request it. In reaching this decision, we respectfully disagree with the opinion of the Third Department in People v Woullard (115 AD3d 1053 [3d Dept 2014]), which reached the opposite conclusion” (Flores, 116 AD3d at 644-645; see People v Malcolm, 118 AD3d 447, 447 [1st Dept 2014]).

“[T]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used” (People v Williams, 19 NY3d 100, 103 [2012] [internal quotation marks omitted]).

m.

CPL 720.10 contains the parameters set by the legislature for youthful offender eligibility. A “youth” is defined as “a person charged with a crime alleged to have been committed when he was at least [16] years old and less than [19] years old or a person charged with being a juvenile offender as defined in [CPL 1.20 (42)]” (CPL 720.10 [1]). An “eligible youth” is “a youth who is eligible to be found a youthful offender” (CPL 720.10 [2]). “Every youth is so eligible,” with certain exceptions set forth in CPL 720.10 (2).

That subdivision provides that those youths who have been convicted of a class A-I or A-II felony, who have “previously been convicted and sentenced for a felony,” or who have “previously been adjudicated a youthful offender following conviction of a felony or [have] been adjudicated on or after [September 1, 1978] a juvenile delinquent who committed a designated felony act as defined in the family court act” are ineligible for youthful offender treatment (see CPL 720.10 [2] [a]-[c]). The legislature provided no exceptions to ineligibility for those categories of offenders. In other words, a defendant who commits a class A-I or A-II felony, who has previously been convicted of a felony, or who has been given youthful offender treatment after a felony conviction is simply ineligible for youthful offender treatment. The court has no discretion in the matter.

CPL 720.10 (2) also includes those convicted of armed felonies or certain sex offenses in the general class of ineligible defendants. In contrast to the other categories of offenders discussed above, however, the legislature has provided that those defendants convicted of an armed felony or an enumerated sex offense are eligible youths under certain circumstances. Subdivision (2) of CPL 720.10 provides that youths convicted of an armed felony or an enumerated sex offense are not eligible youths “except as provided in subdivision three” (CPL 720.10 [2] [a] [ii], [iii] [emphasis added]). In turn, subdivision (3) provides that

“[notwithstanding the provisions of subdivision two, a youth who has been convicted of an armed felony offense or of rape in the first degree, criminal sexual act in the first degree, or aggravated sexual abuse is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution” (CPL 720.10 [3] [emphasis added]).

In other words, if the court determines that one or more of the factors provided by CPL 720.10 (3) are present, a defendant who has been convicted of an armed felony is an eligible youth, “[notwithstanding the provisions of subdivision two.” For every eligible youth that comes before it, the sentencing court “must” determine whether the eligible youth is a youthful offender (CPL 720.20 [1]; Rudolph, 21 NY3d at 501). The court cannot comply with the mandate of CPL 720.20 (1), which requires the court to determine the youthful offender status of every eligible youth, unless the court first makes the threshold determination as to whether the defendant is, in fact, an eligible youth.

In most instances, the court has no discretion in determining the defendant’s eligibility, and therefore, in those instances, no determination on the record as to eligibility is necessary. If the defendant committed the crime when he or she was of an eligible age and none of the exceptions in CPL 720.10 (2) applies, the defendant is an eligible youth, and the court is then required by CPL 720.20 (1) to determine whether the defendant should be adjudicated a youthful offender. If the defendant was not of eligible age, or was of eligible age but was convicted of a class A-I or A-II felony, has previously been convicted and sentenced for a felony, or has previously been adjudicated a youthful offender following a felony conviction, the defendant is not an eligible youth, and the court has no discretion to determine otherwise. Where, however, the defendant has been convicted of an armed felony or an enumerated sex offense pursuant to CPL 720.10 (2) (a) (ii) or (iii), in order to fulfill its responsibility under CPL 720.20 (1) to make a youthful offender determination for every eligible youth, the court must make the threshold determination as to whether the defendant is an eligible youth by considering the factors set forth in CPL 720.10 (3).

On both appeals, the People contend that the legislature’s intent in CPL 720.10 was to make those defendants convicted of armed felonies presumptively ineligible for youthful offender treatment, and the court therefore is not required to make any determination with respect to eligibility unless the defendant affirmatively presents the court with evidence of mitigating circumstances or minor participation. We disagree. That interpretation of the statute fails to acknowledge the significance of the language in CPL 720.10 (2) that those defendants convicted of an armed felony or an enumerated sex offense are not eligible youths “except as provided in subdivision three” (CPL 720.10 [2] [a] [ii], [iii] [emphasis added]).

The People’s interpretation also fails to acknowledge the legislature’s statement in subdivision (3) that a defendant convicted of an armed felony “is an eligible youth,” “[notwithstanding the provisions of subdivision two,” if either mitigating circumstances bearing directly upon the manner in which the crime was committed are present or the defendant’s participation in the crime was relatively minor (CPL 720.10 [3] [emphasis added]). In other words, where either or both of the criteria provided in CPL 720.10 (3) are present, the defendant is an eligible youth, notwithstanding the fact that he or she was convicted of an armed felony. As an eligible youth, such a defendant is then entitled to a youthful offender determination on the record pursuant to CPL 720.20 (1).

Furthermore, the People’s interpretation of the statute gives little consideration to the broader legislative purpose behind CPL article 720. As we recognized in Rudolph,

“this right — not a right to receive youthful offender treatment, but to have a court decide whether such treatment is justified — is different. To disable a court from making that decision is effectively to hold that the defendant may not have the opportunity for a fresh start, without a criminal record, even if the judge would conclude that that opportunity is likely to turn the young offender into a law-abiding, productive member of society.
“The judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining” (21 NY3d at 501).

If the legislature thought that those young offenders convicted of armed felonies were not deserving under any circumstances of the court’s consideration of whether they, too, should be granted the opportunity for a fresh start, the legislature would not have provided that such defendants are eligible youths if one or more of the factors provided by CPL 720.10 (3) are present. Rather, the legislature would have provided that those youths convicted of armed felonies are simply ineligible to be adjudicated youthful offenders, as the legislature did for those convicted of class A-I or A-II felonies (see CPL 720.10 [2] [a] [i]).

Of course, as with the determination regarding the youthful offender adjudication, there will be many cases in which the factors set forth in CPL 720.10 (3) are clearly absent, and, in such cases, the court’s determination that the defendant is not an eligible youth will be a proper exercise of its discretion (see Rudolph, 21 NY3d at 501). In those cases, after the court determines on the record that the CPL 720.10 (3) factors do not exist and that the defendant therefore is not an eligible youth, no further determination is required. Nonetheless, to fulfill its obligation to make a youthful offender determination on the record for every eligible youth, the court must necessarily engage in the threshold exercise of its discretion to determine whether the defendant convicted of an armed felony or an enumerated sex offense is an eligible youth due to the presence of the CPL 720.10 (3) factors. In simpler terms, “the court must make the decision in every case” (Rudolph, 21 NY3d at 501).

It must be emphasized that if the court determines that the defendant is an eligible youth based on the presence of one or more of the CPL 720.10 (3) factors, the court is under no obligation to then grant the defendant a youthful offender adjudication. The court simply must exercise its discretion a second time to determine whether the eligible youth should be granted youthful offender treatment pursuant to CPL 720.20 (1). On that determination, the court is not limited to the two factors set forth in CPL 720.10 (3), which are the only factors the court may consider when determining whether a defendant convicted of an armed felony is an eligible youth. Rather, in making the ultimate determination as to the youthful offender adjudication, the court may consider the broad range of factors pertinent to any youthful offender determination (see People v Cruickshank, 105 AD2d 325, 334 [3d Dept 1985], affd sub nom. People v Dawn Maria C., 67 NY2d 625 [1986]).

Therefore, based on a plain reading of CPL 720.10 and this Court’s decision in Rudolph, we hold that when a defendant has been convicted of an armed felony or an enumerated sex offense pursuant to CPL 720.10 (2) (a) (ii) or (iii), and the only barrier to his or her youthful offender eligibility is that conviction, the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3). The court must make such a determination on the record “even where [the] defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request” pursuant to a plea bargain (Rudolph, 21 NY3d at 499). If the court determines, in its discretion, that neither of the CPL 720.10 (3) factors exist and states the reasons for that determination on the record, no further determination by the court is required. If, however, the court determines that one or more of the CPL 720.10 (3) factors are present, and the defendant is therefore an eligible youth, the court then “must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]).

As we noted in Rudolph, our decision here “should not allow any defendants who have pleaded guilty to withdraw their pleas,” inasmuch as those defendants “pleaded guilty under the impression that the law was less favorable to [them] than we have held that it is” (21 NY3d at 502).

Lowe’s argument that his trial counsel was ineffective is without merit, and, in light of our determination, we need not address his remaining contention that the court abused its discretion in denying his request for an adjournment of sentencing.

Accordingly, in each case, the order of the Appellate Division should be reversed, and the case remitted to County Court for further proceedings in accordance with this opinion.

Stein, J.

(dissenting in People v Middlebrooks, concurring in People v Lowe). The majority holds that a sentencing court must always determine whether a defendant who has any possibility of establishing eligibility for youthful offender status is, in fact, so eligible. In my view, that holding represents an unwarranted extension of our decision in People v Rudolph (21 NY3d 497 [2013]) and a strained reading of the relevant statutory language. I would hold that a defendant who is presumptively ineligible for youthful offender treatment must request, and the burden rests on such defendant to establish, that he or she is an eligible youth, rather than obligating the courts to initiate an inquiry into the defendant’s potential eligibility.

L

Resolution of this issue depends on the text of the relevant statutes and on our decision in Rudolph. CPL 720.20 (1) provides that, “[u]pon conviction of an eligible youth, . . . the court must determine whether or not the eligible youth is a youthful offender,” by considering certain enumerated criteria. In Rudolph, we held that the legislature’s use of the word “must” in CPL 720.20 (1) meant that a sentencing court was required to determine whether a defendant who is eligible for youthful offender treatment should be so treated, regardless of whether the defendant requested such treatment or even waived the right to it (see 21 NY3d at 499, 501). The majority now takes the legislature’s use of the word “must” in CPL 720.20 (1) and inserts it into CPL 720.10 — a purely definitional provision — to require courts to determine whether a defendant is an “eligible youth,” even when the defendant is specifically excluded from that term (in the absence of proof of enumerated circumstances). The majority does so despite the absence of the word “must” in CPL 720.10.

It is undisputed that defendants William Middlebrooks and Fabrice Lowe fit within the definition of “[y]outh” because they were each 18 years old when they committed the crimes at issue here (CPL 720.10 [1]). The statute defines the term “[ejligible youth” as “a youth who is eligible to be found a youthful offender,” and states that “[e]very youth is so eligible unless” he or she falls within certain exceptions; one such exception is where, as here, the current crime is an armed felony, “except as provided in subdivision three” (CPL 720.10 [2] [a] [ii] [emphasis added]). Subdivision (3) provides that,

“Notwithstanding the provisions of subdivision two, a youth who has been convicted of an armed felony offense . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution” (CPL 720.10 [3] [emphasis added]).

The majority repeatedly emphasizes the language in subdivision (3) that a youth convicted of an armed felony “is an eligible youth,” but ignores the import of the next word in the statute— “if” — and the qualifying language that follows (CPL 720.10 [3] [emphasis added]). “[I]f” is a qualifying word, indicating that the defendant “is an eligible youth” only in the event that the enumerated conditions are proved. That is, although the statute begins with the broad premise that every youth is eligible for youthful offender status, that premise is clearly qualified by the words “unless,” “except,” and “if” (CPL 720.10 [2], [3]). Each of those qualifiers represents a step that must be taken in the analysis before finding a youth to be an “eligible youth.” Relying on the fact that a youth may be considered an eligible youth if the court determines that one or more of the statutory factors exist (see CPL 720.10 [3]), the majority incorrectly concludes that every sentencing court is obligated to initiate an inquiry and make a determination as to whether the defendant is an eligible youth, even where the statute presumes that he or she is not.

In Rudolph, we held that courts have an independent duty to determine whether to bestow youthful offender status on any defendant who is an eligible youth (see 21 NY3d at 501). In that case, the defendant fit the definition of a presumptively eligible youth because he did not fall within any of the statutory exceptions. Now, however, the majority extends Rudolph to require courts to make the more complex, threshold determination as to whether a presumptively ineligible young defendant could possibly qualify as an eligible youth — regardless of whether the defendant requests youthful offender treatment or even specifically waives it — before proceeding with the statutorily mandated determination of whether to grant youthful offender status if a finding of eligibility is made. In my view, this goes too far. While I, like the majority here and in Rudolph, recognize the laudatory policy considerations behind the youthful offender statute, such considerations simply cannot justify the majority’s holding here, which is based upon an erroneous grafting of the language of CPL 720.20 (1) into the language of CPL 720.10.

As the majority notes, following Rudolph, the Appellate Division Departments split on the issue currently before us. The Third Department first addressed the issue, concluding that Rudolph did not apply to a defendant who “was convicted of an armed felony and was, therefore, not eligible for youthful offender status” (People v Woullard, 115 AD3d 1053, 1054 [3d Dept 2014], lv denied 23 NY3d 1026 [2014] [citations omitted]). In a footnote, the Court “recognize [d] that an age-eligible defendant who has been convicted of an excluded felony may seek youthful offender treatment by demonstrating mitigating circumstances that bear directly upon the manner in which the crime was committed. However, where, as here, no such showing was made, the defendant is not an eligible youth” {id. at 1054 n 2 [internal quotation marks and citations omitted]). The First Department has disagreed with that holding, concluding that, “regardless of whether [a] defendant was convicted of an armed felony, he [or she] was potentially eligible for [youthful offender] treatment under the mitigation provisions of CPL 720.10 (3), and was therefore entitled to a determination” (People v Boria, 124 AD3d 467, 468 [1st Dept 2015] [emphasis added]; see People v Malcolm, 118 AD3d 447, 447 [1st Dept 2014] [also stating that the defendant was “potentially eligible”]; People v Flores, 116 AD3d 644, 644-645 [1st Dept 2014]).

However, CPL 720.20 (1) says only that the court “must” determine whether an “eligible youth is a youthful offender.” In my view, the First Department and the majority here have erred because a plain reading of that statute does not impose any requirement on the court if a person is only “potentially” an eligible youth. Indeed, young defendants who fall under CPL 720.10 (2) (a) (ii) and (iii) are presumptively ineligible for youthful offender status, with only an opportunity to attempt to establish their eligibility pursuant to CPL 720.10 (3). It is entirely consistent with the statutory scheme to require defendants to bear the burden of establishing that eligibility by demonstrating the exception’s statutory factors of mitigating circumstances or minimal role in the crime (see People v Brodhead, 106 AD3d 1337, 1337 [3d Dept 2013], lv denied 22 NY3d 1087 [2014]; see also People v Victor J., 283 AD2d 205, 206 [1st Dept 2001], lv denied 96 NY2d 942 [2001]).

Under the rule created by the majority today, that burden is placed on the court. While Rudolph imposed a responsibility on sentencing courts to make a determination regarding youthful offender status for all youths who are presumptively eligible, the Court held that the legislature had already placed that burden on sentencing courts through its use of the word “must” in CPL 720.20 (1) (see Rudolph, 21 NY3d at 501). The legislature did not indicate, in CPL 720.10, that the courts must attempt to elicit and ascertain the existence of factors that would convert a youth who is presumptively ineligible for youthful offender status — because he or she committed an armed felony— into an eligible youth. Notably, the phrase “if the court determines” in CPL 720.10 (3) is couched in passive language.

Not only does the majority err in holding that the court bears the burden of determining whether a presumptively ineligible youth is, in fact, an eligible youth, it goes even further so as to impose that responsibility on courts regardless of whether a defendant in that category requests — or even waives — youthful offender treatment. The majority does not explain how, or on what basis, a court would be able to make a determination of the enumerated factors for a defendant who does not seek such treatment. For example, in situations such as Middlebrooks, where the defendant pleaded guilty, the record may not contain information concerning mitigating circumstances or the extent of the defendant’s role in the crime (see CPL 720.10 [3]). Is the court then obligated on its own to hold a hearing or beseech the possibly uninterested defendant to provide additional information to enable the court to make an informed determination as to whether a presumptively ineligible youth qualifies as an eligible youth? It seems to me that the majority requires too much of the already-overburdened criminal courts; rather, the burden should be on the presumptively ineligible defendants who desire the benefits associated with youthful offender treatment. Although young defendants may not be versed in the law, counsel are available to assist them. In our system of justice, unless the legislature has plainly laid a burden on a particular party or on the court (see Rudolph, 21 NY3d at 501; CPL 720.20 [1]), the burden generally rests upon the party seeking to benefit from a particular action (see People v McCartney, 38 NY2d 618, 622 [1976]; see also Buechel v Bain, 97 NY2d 295, 304 [2001], cert denied 535 US 1096 [2002]; Matter of Priest v Hennessy, 51 NY2d 62, 69 [1980]). Accordingly, defendants who are presumptively ineligible for youthful offender treatment — for example, because they committed an armed felony — should be responsible for requesting such treatment, and bear the burden of establishing the statutory factor or factors that would permit a court to determine that they qualify as eligible youths. As Middlebrooks did not do so, I would affirm the Appellate Division order in his case.

II

In Lowe, I concur only in the result of reversal, based on an argument not reached by the majority. Defense counsel requested an adjournment of sentencing to compile her own presentence report, as is permitted by statute (see CPL 390.40 [1]); she also requested consideration of Lowe for youthful offender status. County Court refused to grant the adjournment, without any legitimate explanation, despite having moved sentencing up two weeks from its originally scheduled date. It is unclear whether the defense report would have revealed information related to the factors that could have qualified Lowe as an eligible youth (see CPL 720.10 [3]), and if counsel planned to use the report to establish those factors or for other sentencing-related purposes. Under these circumstances, the court’s denial of Lowe’s reasonable request for an adjournment was an abuse of discretion, requiring that his conviction be reversed, his sentence vacated and the matter remitted for sentencing after affording defendant an opportunity to prepare a presentence report (see People v Foy, 32 NY2d 473, 476-477 [1973]; compare People v Becoats, 17 NY3d 643, 652-653 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]).

In People v Middlebrooks: Order reversed and case remitted to County Court, Erie County, for further proceedings in accordance with the opinion herein.

Opinion by Judge Fahey. Chief Judge Lippman and Judges Rivera and Abdus-Salaam concur. Judge Stein dissents in an opinion in which Judges Read and Pigott concur.

In People v Lowe: Order reversed and case remitted to County Court, Onondaga County, for further proceedings in accordance with the opinion herein.

Opinion by Judge Fahey. Chief Judge Lippman and Judges Rivera and Abdus-Salaam concur. Judge Stein concurs in result in a separate concurring opinion in which Judges Read and Pigott concur.

      . To the extent Lowe contends that the court “implicitly” found him to be an eligible youth and then denied his request for youthful offender status, the record belies his contention. There is no basis in the record to conclude that the court considered the eligibility issue and found him to be an eligible youth.

      . To the extent the People assert that Lowe’s contention with respect to his youthful offender status is moot in light of the Appellate Division’s reduction of Lowe’s sentence, we reject that assertion. If the court had found Lowe to be an eligible youth and then further determined that he should be granted youthful offender treatment, the harshest sentence the court could have imposed was an indeterminate term of imprisonment of IV3 to 4 years, a lesser sentence than the five-year determinate term imposed by the Appellate Division (see Penal Law §§ 60.02 [2]; 70.00 [2] [e]). Furthermore, a youthluí offender adjudication has additional benefits beyond the reduced sentence that may be imposed (see CPL 720.35; Rudolph, 21 NY3d at 500-501).

      . A similar exception exists where the current crime is an enumerated sex offense (see CPL 720.10 [2] [a] [iii]). While this decision discusses the armed felony exception — because it directly applies to the defendants in these cases — the same analysis under the statutes is applicable to a defendant convicted of an enumerated sex offense.

      . To the contrary, the holding in Rudolph was properly based on the language of CPL 720.20 (1).

      . Middlebrooks, while represented by counsel, entered a plea agreement whereby he pleaded guilty with a promised range of sentencing that would not be available if he were adjudicated a youthful offender. If he had obtained youthful offender status, he would have had to forgo that favorable plea agreement.


author: Abdus-Salaam, J.

text:
    [35 NE3d 840, 14 NYS3d 770]
    The People of the State of New York, Respondent, v William Henderson, Appellant.
    Argued June 1, 2015;
    decided June 30, 2015

      POINTS OF COUNSEL

      The Abhatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), for appellant.
    I. There was insufficient evidence of felony murder. (People v Cahill, 2 NY3d 14; People v Miller, 32 NY2d 157; People v Wood, 8 NY2d 48; People v Hernandez, 82 NY2d 309; People v Bornholdt, 33 NY2d 75; People v Joyner, 26 NY2d 106; People v Gladman, 41 NY2d 123; People v Arroyo, 93 NY2d 990; People v Heath, 203 AD2d 17; People v Versaggi, 83 NY2d 123.) II. The lower court erred by refusing to charge the lesser-included offense of manslaughter in the second degree. (People v Butler, 84 NY2d 627; People v Stanford, 87 AD3d 1367; People v Lopez, 72 AD3d 593; People v Sussman, 298 AD2d 205; People v Rivera, 23 NY3d 112; People v Green, 56 NY2d 427; People v Glover, 57 NY2d 61; People v Evans, 232 AD2d 275; People v Dinser, 192 NY 80; Morissette v United States, 342 US 246.) III. The lower court erred by refusing to grant a missing witness charge. (People v Gonzalez, 68 NY2d 424; People v Kitching, 78 NY2d 532; People v Macana, 84 NY2d 173; People v Erts, 73 NY2d 872; People v Concepcion, 17 NY3d 192; People v LaFontaine, 92 NY2d 470; People v Grimes, 289 AD2d 1072; State of New York v Skibinski, 87 AD2d 974; Hoffman v United States, 341 US 479; Southbridge Finishing Co. v Golding, 2 AD2d 882.)

      Kathleen B. Hogan, District Attorney, Lake George (Jason M. Carusone and Emilee B. Davenport of counsel), for respondent.
    I. The trial evidence permitted the jury to conclude the defendant committed felony murder and that the People proved each element of that crime beyond a reasonable doubt. As such, the Appellate Division properly found that the defendant’s conviction is supported by legally sufficient evidence. (People v Bleakley, 69 NY2d 490; People v Miller, 32 NY2d 157; People v Ca-

      hill, 2 NY3d 14; People v Wood, 8 NY2d 48; People v Hernandez, 82 NY2d 309.) II. The defendant was not entitled to an instruction on manslaughter in the second degree as a lesser included offense of manslaughter in the first degree, because there was no reasonable view of the evidence that would have supported a finding that the defendant recklessly killed Chambers. (People v Rivera, 23 NY3d 112; People v Glover, 57 NY2d 61; People v Martin, 59 NY2d 704; People v Green, 56 NY2d 427; People v Scarborough, 49 NY2d 364; People v Asan, 22 NY2d 526; People v Discala, 45 NY2d 38; People v Negron, 91 NY2d 788; People v Tai, 39 NY2d 894; People v Evans, 232 AD2d 275.) III. The County Court properly denied the defendant’s request for a missing witness charge with respect to Mathes, the defendant’s cousin, since Mathes was not under the People’s control, and if any error occurred such error was necessarily harmless as a result of the overwhelming evidence presented at trial of the defendant’s guilt. (People v Gonzalez, 68 NY2d 424; People v Sharp, 107 NY 427; People v Griffin, 100 AD2d 659; People v Williams, 34 AD2d 1046; Reehil v Fraas, 129 App Div 563; People v Dillard, 96 AD2d 112; People v Douglas, 54 AD2d 515; People v Moore, 17 AD2d 57; People v Rodriguez, 38 NY2d 95; People v Brown, 34 NY2d 658.)
   OPINION OF THE COURT

Abdus-Salaam, J.

The primary issue presented on this appeal is whether there was sufficient proof to support defendant’s conviction for felony murder, based upon the underlying predicate felony of burglary. Because legally sufficient evidence exists, the order of the Appellate Division should be affirmed.

I

Defendant William Henderson, his cousin and a friend broke into an apartment looking for two individuals who the men suspected had robbed them of drugs and money that were kept in an associate’s nearby apartment. When defendant broke down the door to the apartment, the suspected thieves were not inside. Rather, the victim and his girlfriend were in an upstairs bedroom. When the victim heard the downstairs door being kicked in, he opened the door to the bedroom and saw the men coming up the stairs. Defendant was screaming and asking for the whereabouts of the individuals he believed had stolen the drugs. The victim told defendant to leave. Defendant then punched the victim in the face and a fistfight ensued. The victim’s girlfriend hit defendant over the head with a bottle. At some point, she heard sirens and stated that the police were coming. Defendant and the other men ran out of the apartment, returning to their associate’s apartment.

Defendant took a knife out of the knife block in his associate’s kitchen, telling his associate that he was “going to kill him,” presumably referring to the victim. Defendant returned to the victim’s apartment holding the knife in his hand. The victim told his girlfriend to run, and she ran out of the back door to a neighbor’s apartment and called 911. As she ran out of the apartment, she heard glass shattering. A bottle had apparently been broken over the victim’s head. The victim’s girlfriend then ran back to the apartment and saw the victim exit the door and slump down on the stoop with shards of glass protruding from his scalp and blood pouring from his back. The victim told his girlfriend that he thought he had been stabbed, and he thereafter lost consciousness. Defendant fled the apartment, got into a vehicle with his friend and sped off just as the police arrived. After the police pursued the vehicle, defendant and his friend were arrested. Defendant’s cousin, who was still in the associate’s apartment when defendant stabbed the victim, was also arrested. EMTs tried but failed to resuscitate the victim, and he was pronounced dead.

Defendant was indicted for murder in the second degree (Penal Law § 125.25 [1] [intentional murder]), murder in the second degree (Penal Law § 125.25 [3] [felony murder]), assault in the second degree (Penal Law § 120.05 [1] [intentional assault]), assault in the second degree (Penal Law § 120.05 [6] [felony assault]), burglary in the first degree (Penal Law § 140.30 [2]), burglary in the second degree (Penal Law § 140.25 [1] [b] [burglary resulting in physical injury]), and burglary in the second degree (Penal Law § 140.25 [2] [burglarizing a dwelling]). During trial, the associate testified for the People, stating that defendant, defendant’s cousin and their friend had left her apartment for a period of time, and when they returned, defendant appeared upset, was “pacing back and forth . . . and then . . . took a kitchen knife.” She heard defendant say that he was “going to kill him.” The associate asked defendant to put the knife back, but he did not comply. The victim’s girlfriend also testified for the People. She stated that defendant and other men broke into the apartment and described the ensuing fight between defendant and the victim. She testified that the victim told her that he had been stabbed. The medical examiner who conducted the victim’s autopsy also testified for the People. He concluded that the victim’s cause of death was a hemorrhage as a result of a stab wound to his left back which perforated his aorta.

Defendant did not testify; however, his testimony from his first trial was read into the record. In that statement, defendant testified that while he was going to his associate’s apartment, the victim made a racial slur and threw a bottle at him. He admitted to breaking into the victim’s apartment, fighting with him, and returning with a knife. Defendant testified that he did not intend to kill the victim, but he “wanted to hurt him like he hurt me with the bottle.”

Defendant was convicted of felony murder, first-degree manslaughter, first-degree burglary, two counts of second-degree burglary, and second-degree assault. On appeal, the Appellate Division rejected defendant’s argument that “the evidence of felony murder [wa]s legally insufficient because the predicate burglary is based upon his conceded intent to commit an assault” (110 AD3d 1353, 1354 [3d Dept 2013]). The Court affirmed, holding that defendant’s felony murder conviction “may properly be based on a burglary as the predicate felony where the intent at the time of entry is to commit an assault” (id. at 1354). A Judge of this Court granted defendant leave to appeal (see 23 NY3d 963 [2014]), and we now affirm.

II

There is legally sufficient evidence in this record to support defendant’s conviction for felony murder.

Penal Law § 125.25 (3) provides that a person is guilty of murder in the second degree if he or she commits or attempts to commit one of 10 enumerated felonies, “and, in the course of and in furtherance of such crime . . . causes the death of [another].” The felony murder statute includes, in its list of predicate felonies, the crime of burglary. To establish the crime of burglary, it must be shown that the defendant “knowingly enters or remains unlawfully in a building with intent to commit a crime therein” (Penal Law § 140.20).

Defendant presently argues that the evidence adduced at trial demonstrates that the second time he entered the victim’s apartment, he did so with the intent to kill. As support, defendant relies on his associate’s testimony that after he took the knife, he stated he was “going to kill” the victim. He asserts that a felony murder conviction cannot be predicated on burglary when the intended crime underlying the burglary is murder, because to do so would double-count a single mens rea of intent to kill. There was evidence at trial, however, that defendant’s intent when he reentered the victim’s apartment was to commit assault, not kill the victim. Defendant testified that he initially retrieved the knife because “[he] was mad [he] got assaulted” by the victim “and [he] wanted to even the odds.” He admitted that upon his reentry, he immediately began to fight with the victim. He denied returning to the apartment to kill the victim, but admitted he intended to “hurt” him. Defendant stabbed the victim only after the victim “swung” at him. Although defendant told his associate that he wanted to kill the victim, viewing the evidence, as we must, in the light most favorable to the People (see People v Delamota, 18 NY3d 107, 113 [2011]; People v Conway, 6 NY3d 869, 872 [2006]), a rational trier of fact could conclude that, based upon defendant’s own statements, defendant committed the crime of burglary when he entered the apartment with the intent to assault the victim and during that burglary defendant caused the victim’s death.

We now consider the question of whether there was legally sufficient evidence of felony murder. We conclude legally sufficient evidence exists here. As we held in People v Miller (32 NY2d 157 [1973]), a felony murder conviction may be predicated upon the commission of a burglary where the defendant’s underlying intent is to assault the victim. In that case, the defendant broke into an apartment intending to assault one of the occupants, Fennell. The defendant entered the apartment and stabbed Fennell in the arm while spraying a chemical in Fennell’s face. Aleem, Fennell’s roommate, came to Fennell’s aid, and the defendant killed Aleem by stabbing him in the chest. This Court held that a felony murder charge predicated on burglary was sufficient for conviction of felony murder on those facts, despite the defendant’s argument that the intent to commit assault underlying the burglary merged with the homicide (id. at 159).

Noting the legislature’s inclusion of burglary of all degrees, without qualification, as a predicate felony for felony murder, we observed

“that persons within domiciles are in greater peril from those entering the domicile with criminal intent, than persons on the street who are being subjected to the same criminal intent. Thus, the burglary statutes prescribe greater punishment for a criminal act committed within the domicile than for the same act committed on the street” (id. at 160).

It is clear that the legislature chose to treat burglary differently than other crimes. Therefore, an individual who approaches another on the street with an intent to assault but causes the death of that person could be convicted of manslaughter, but not felony murder. It is entirely reasonable, however, that a person — like defendant — who unlawfully enters a building with the intent to commit an assault therein, but causes the death of another, may be convicted of felony murder, in recognition that the homicide occurs in the context of other criminal activity that enhances the seriousness of the offense.

Although Miller involved two victims, our rationale in Miller is applicable here. The defendant’s intent in Miller to assault one victim when unlawfully entering the apartment, combined with the murder that resulted in the course of and in furtherance of the burglary, was sufficient to support a felony murder conviction. This Court’s holding in Miller was not limited to circumstances where a defendant killed a victim other than the one he or she intended to harm. Here, defendant unlawfully entered the victim’s apartment with the singular intent to assault him, but caused his death. Defendant’s felony murder conviction, therefore, is supported by legally sufficient evidence.

Although defendant urges this Court to answer a question we expressly left open in People v Cahill (2 NY3d 14 [2003]), this case does not present us with an occasion to do so. In People v Cahill, involving the capital murder statute, we did not address whether a person who enters a building with the intent to kill may properly be convicted of felony murder. Likewise, we need not answer that question here because there is sufficient evidence from which a rational jury could conclude that defendant entered the victim’s apartment with the sole intent to commit assault. Furthermore, in Cahill this Court repeatedly explained that the holding in that case was consistent with, and had no impact on, the holding of Miller.

Defendant also argues that his felony murder conviction rests on legally insufficient evidence because there is no evidence that he committed the murder “in furtherance of” a burglary. He asserts that the statutory language “in furtherance of” requires that the death be caused in order to advance or promote the underlying felony. We have not interpreted “in furtherance of” so narrowly. The felony murder statute is intended to punish a perpetrator for a death he or she caused during the commission of a felony, but not a death that is coincidental to the felony (see People v Hernandez, 82 NY2d 309, 317 [1993]). The “in furtherance of” element requires “a logical nexus between a murder and a felony” (Cahill, 2 NY3d at 101-102 [Graffeo, J., concurring in part and dissenting in part], citing People v Lewis, 111 Misc 2d 682 [Sup Ct, NY County 1981]). Here, there is a clear logical nexus between defendant’s felony of unlawfully entering the victim’s apartment to assault him and the homicide, which was certainly not coincidental. Limiting the “in furtherance of” element to murders that promote or advance the felony, as defendant suggests, would exclude from felony murder a large class of murders. Given that the purpose of the felony murder statute was to broaden liability for deaths that occur during the commission of certain enumerated felonies, the legislature could not have possibly intended such a result (see Cahill, 2 NY3d at 66-68). Thus, defendant’s conviction for felony murder is based upon legally sufficient evidence.

Ill

Defendant’s remaining contentions do not warrant reversal. Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed.

       During defendant’s original trial, defendant testified on his own behalf. Prior to deliberations, County Court granted defendant’s request to instruct the jury on manslaughter in the first degree (Penal Law § 125.20 [1]) as a lesser included offense of murder in the second degree (Penal Law § 125.25 [1] [intentional murder]). Defendant was convicted upon a jury verdict of manslaughter in the first degree, but acquitted of intentional murder. Additionally, he was convicted of the remaining counts. Defendant appealed, and the Appellate Division reversed the judgment and remitted to County Court for a new trial (People v Henderson, 74 AD3d 1567 [3d Dept 2010]). The Court determined that “County Court committed reversible error in dismissing a sworn juror over [defendant’s] objections” (id. at 1570). Thereafter the Appellate Division granted the People’s request to seek an indictment on the originally unindicted count of first degree manslaughter (People v Henderson, 77 AD3d 1168 [3d Dept 2010]). A second indictment was then filed, charging defendant with first degree manslaughter. County Court granted the People’s motion to consolidate the indictments.