author: Fahey, J. Rivera, J.

text:
    [55 NE3d 1041, 36 NYS3d 68]
    The People of the State of New York, Appellant, v Terrance L. Mack, Respondent.
    Argued September 10, 2015;
    reargued April 26, 2016;
    decided June 7, 2016

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeu-per of counsel), for appellant.

      Sullivan <fe Cromwell LLP, New York City (Nicolas Bourtin and Amanda L. Houle of counsel), and Timothy P. Donaher, Public Defender, Rochester {David R. Juergens of counsel), for respondent.
   OPINION OF THE COURT

Fahey, J.

Criminal Procedure Law § 310.30 imposes two responsibilities on trial courts upon receipt of a substantive note from a deliberating jury: the court must provide counsel with meaningful notice of the content of the note, and the court must provide a meaningful response to the jury (People v O’Rama, 78 NY2d 270, 276-277 [1991]). A trial court’s failure to fulfill its first responsibility — meaningful notice to counsel — falls within the narrow class of mode of proceedings errors for which preservation is not required (see id. at 279). On this appeal, we consider whether the preservation rule applies when counsel unquestionably had meaningful notice of the jury’s substantive inquiries, but the trial court did not respond to those inquiries before accepting the verdict. We hold that where counsel has meaningful notice of the content of a jury note and of the trial court’s response, or lack thereof, to that note, the court’s alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review.

I.

Defendant was charged with gang assault in the first degree for his involvement in a group attack on a woman that resulted in her death. Shortly before 6:00 p.m. on the first day of deliberations, the jury stated that it was deadlocked. After the court responded to that note, the jury returned to its deliberations at 6:02 p.m. The court then informed counsel that it would stand in recess until 7:30 p.m. There is no indication on the record that the jury was informed of this recess.

During the recess, the jury sent out three notes. The first note, sent at 6:20 p.m., requested the court’s instructions regarding “the importance of a single witness in a case versus multiple witnesses and the instructions about the meaning of reasonable doubt.” The second note, sent at 6:43 p.m., requested to hear the testimony of one of the People’s witnesses, who had identified defendant as one of the assailants, regarding the defendant’s “leaving of the crime scene,” and also asked for more jury request sheets. The third note, sent at 6:47 p.m., asked for a smoking break.

When the proceedings reconvened at 7:51 p.m., the court marked these three notes as court exhibits and then read the notes verbatim into the record in the presence of counsel and defendant. The court stated that it planned to reread its earlier legal instructions on the requested topics, and the court and counsel concluded that the People’s witness had not provided any testimony about defendant’s departure from the crime scene. Before the court recalled the jury into the courtroom to provide those responses, however, the court deputy handed the court another note from the jury.

That note, sent at 7:54 p.m. and marked as a court exhibit, stated that the jury had reached a verdict. The court and counsel had an off-the-record bench discussion. At 8:10 p.m., the court announced on the record in the presence of counsel and defendant that the jury had reached a verdict and that the court planned to bring the jurors into the courtroom to take their verdict. The jurors then entered the courtroom and reported that they had found defendant guilty. The court polled the jury and accepted the verdict without responding to the notes sent during the recess or inquiring whether the jurors still desired a response to those notes. Counsel did not object to this procedure.

On appeal, the Appellate Division reversed the judgment and ordered a new trial (117 AD3d 1450 [4th Dept 2014]). The Appellate Division held that the trial court’s failure to provide a meaningful response to the jury’s substantive requests before accepting the verdict constituted a mode of proceedings error for which preservation was not required (see id. at 1451). The dissenting Justice would have affirmed, concluding that any error did not constitute a mode of proceedings error and, in any event, that there was no error because the jury implicitly rescinded its earlier requests (see id. at 1452 [Lindley, J., dissenting]).

The dissenting Justice granted the People leave to appeal to this Court (23 NY3d 1027 [2014]). We now reverse.

II.

In People v O’Rama, this Court held that CPL 310.30 requires trial courts to provide meaningful notice to counsel of a substantive inquiry from a deliberating jury, and that meaningful notice “means notice of the actual specific content of the jurors’ request” (O’Rama, 78 NY2d at 277). We have subsequently held that when the trial court fails to provide counsel with meaningful notice of a substantive jury note, a mode of proceedings error has occurred and reversal is required, regardless of whether the court has fulfilled its other responsibility under CPL 310.30 to provide the jury with a meaningful response to its request (see People v Walston, 23 NY3d 986, 989-990 [2014]; People v Tabb, 13 NY3d 852, 853 [2009]; People v Kisoon, 8 NY3d 129, 134-135 [2007]). Recently, in People v Silva (24 NY3d 294 [2014], rearg denied 24 NY3d 1216 [2015]), where the trial court fulfilled neither of its core responsibilities under CPL 310.30, by failing to inform counsel of the existence of a jury note and also failing to respond to the note before accepting the jury’s verdict, we held that a mode of proceedings error had occurred (see id. at 299-300).

In People v Nealon (26 NY3d 152 [2015]), we reiterated that a court complies with its responsibility to provide counsel with meaningful notice of a substantive jury inquiry by reading the precise content of the note into the record in the presence of counsel, defendant, and the jury before providing a response, even if the court departs from the O’Rama procedure (see generally O’Rama, 78 NY2d at 277-278) by failing to discuss the note or the court’s intended response with counsel before recalling the jury into the courtroom (see Nealon, 26 NY3d at 160-162). That holding was based upon our precedent requiring preservation when the trial court departs from the O’Rama procedure but counsel nevertheless has meaningful notice of the jury note (see People v Alcide, 21 NY3d 687, 693-694 [2013]; People v Williams, 21 NY3d 932, 934-935 [2013]; People v Ramirez, 15 NY3d 824, 825-826 [2010]; People v Starling, 85 NY2d 509, 516 [1995]). We repeated our frequent observation that not every departure from the O’Rama procedure or violation of CPL 310.30 constitutes a mode of proceedings error (Nealon, 26 NY3d at 158; see Silva, 24 NY3d at 299; Walston, 23 NY3d at 989; Kisoon, 8 NY3d at 135).

In Nealon, Silva, and other post-O’Rama decisions considering whether failure to comply with CPL 310.30 constitutes a mode of proceedings error, the Court did not discuss whether a trial court’s alleged failure to provide a meaningful response to a substantive inquiry from the jury, standing alone, constitutes a mode of proceedings error for which preservation is not required. Our jurisprudence makes clear that a trial court’s failure to provide meaningful notice to counsel of a substantive jury note constitutes a mode of proceedings error (see Nealon, 26 NY3d at 156-157; Walston, 23 NY3d at 989-990; Tabb, 13 NY3d at 853; Kisoon, 8 NY3d at 134-135). Silva also makes clear that a trial court’s failure to comply with both of its core responsibilities — both meaningful notice to counsel and a meaningful response to the jury — requires reversal despite lack of preservation (Silva, 24 NY3d at 299-300). We did not consider in these cases, however, whether a mode of proceedings error occurs when the trial court fails to provide a meaningful response to a substantive jury note but satisfies its meaningful notice obligations.

The issue is now squarely before us here. The question is not whether the trial court erred. Rather, the issue is whether the alleged error constitutes a mode of proceedings error requiring automatic reversal despite the lack of preservation.

III.

The errors that fit within the category of mode of proceedings errors are not easily defined. We have described such errors as encompassing a “very narrow exception” to the preservation rule (Silva, 24 NY3d at 299 [internal quotation marks omitted]; see People v Kelly, 5 NY3d 116, 119-120 [2005]). Mode of proceedings errors are immune not only from the rules governing preservation and waiver but also from harmless error analysis (see e.g. People v Mehmedi, 69 NY2d 759, 760 [1987], rearg denied 69 NY2d 985 [1987]; People v Ahmed, 66 NY2d 307, 310 [1985], rearg denied 67 NY2d 647 [1986]; People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]). Such errors require reversal without regard to the prejudice, or lack thereof, to the defendant.

We have therefore been hesitant to expand the mode-of-proceedings-error doctrine. Outside of this “tightly circumscribed class,” we have “repeatedly held that a court’s failure to adhere to a statutorily or constitutionally grounded procedural protection does not relieve the defendant of the obligation to protest” (Kelly, 5 NY3d at 120). Broadening the exception might “open the door to abuse” (People v Becoats, 17 NY3d 643, 651 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]). We have also been wary of the possible erosion of the preservation rule, which allows trial courts to correct errors in a timely fashion (see e.g. People v Ippolito, 20 NY3d 615, 625 [2013]) and “prevent[s] unnecessary surprise after the conduct of a complete trial” (People v Allen, 24 NY3d 441, 449 [2014]). The designation of a mode of proceedings error is therefore “reserved for the most fundamental flaws” (Becoats, 17 NY3d at 651). The error must “go to the essential validity of the process and [be] so fundamental that the entire trial is irreparably tainted” (Kelly, 5 NY3d at 119-120).

The alleged error here is not of that character. We have acknowledged the critical nature of a substantive request from a deliberating jury, and the importance of a meaningful response by the trial court (see Kisoon, 8 NY3d at 134-135; People v Lourido, 70 NY2d 428, 435 [1987]; People v Malloy, 55 NY2d 296, 301-302 [1982], cert denied 459 US 847 [1982]; People v Miller, 6 NY2d 152, 156 [1959]; People v Gonzalez, 293 NY 259, 263 [1944]). We have refused, however, to classify under the mode-of-proceedings rubric errors that are arguably more important to the validity of the criminal process, such as the People’s failure to present evidence sufficient to support a conviction (see People v Gray, 86 NY2d 10, 21-22 [1995]), or, if the defendant has an opportunity to object, an alleged error affecting the validity of a guilty plea (see People v Conceicao, 26 NY3d 375, 381-382 [2015]). We have also required preservation for “most ‘errors of constitutional dimension’ ” (People v Hanley, 20 NY3d 601, 605 [2013], quoting People v Alvarez, 20 NY3d 75, 81 [2012]).

Of pivotal importance here is counsel’s knowledge of all the facts required to object to the trial court’s procedure or lack of response to the jury’s requests. Granted, we have recognized mode of proceedings errors in other contexts where defense counsel was aware of the information required to form an objection, including where counsel affirmatively consented to the trial court’s procedure (see e.g. People v Rivera, 23 NY3d 827, 831 [2014]; Ahmed, 66 NY2d at 309-310). In the O’Rama context, however, lack of notice is the key determinant in classifying a particular procedure as a mode of proceedings error. Notice gives counsel the opportunity to object to any possible error.

When the trial court paraphrases or summarizes a jury note, thereby failing to provide counsel with meaningful notice of the specific content of the note, a mode of proceedings error occurs, “because counsel cannot be expected to object to the court’s response to the jury or to frame an intelligent suggested response if counsel lacks knowledge of the specific content of a substantive jury note” (Nealon, 26 NY3d at 157). In other words, counsel generally cannot object to an error of which he or she is unaware. This Court’s recognition of a mode of proceedings error in O’Rama was based upon counsel’s inability to “participate effectively or adequately protect the defendant’s rights” if counsel lacks notice “of the actual specific content of the jurors’ request” (O’Rama, 78 NY2d at 277). If the court fails to inform counsel of the precise content of a substantive jury note, the court’s error “ha[s] the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial” (id. at 279).

By contrast, where counsel has meaningful notice of a substantive jury note that has been read verbatim in open court, the court’s failure to discuss the note or its intended response with counsel outside the presence of the jury is not a mode of proceedings error because counsel is not prevented from objecting or from participating meaningfully (see Nealon, 26 NY3d at 160-162; Alcide, 21 NY3d at 693-694; Williams, 21 NY3d at 934-935; Ramirez, 15 NY3d at 825-826; Starling, 85 NY2d at 516). In that scenario, counsel is aware of the precise content of the note, knows that he or she has not had an opportunity to provide the court with input on its intended response, and is also aware of the court’s actual response to the jury, “which counsel is hearing in open court as the court provides its response to the jury” (Nealon, 26 NY3d at 162). “Counsel therefore has all the knowledge required to make an objection, either to the court’s deviation from the O’Rama procedure or to the court’s response to the jury, or both” (id.).

Nealon and its predecessors are not controlling here because in those cases, we considered the trial court’s fulfillment of its obligation under CPL 310.30 to provide meaningful notice, not its separate obligation to provide a meaningful response to the jury. Nevertheless, these cases demonstrate that we have generally refused to classify alleged errors as mode of proceedings errors in the jury note context when the record demonstrates that counsel had all the knowledge required to object, and a timely objection would have allowed the court to “easily cure[ ] the claimed error” (Ippolito, 20 NY3d at 625).

Here, defense counsel had the notice required to enable him to object to the trial court’s procedure if he considered that approach to be prejudicial. Counsel knew the precise content of the jury notes received during the recess because the court read those notes verbatim into the record in counsel’s presence. Counsel knew how the court planned to respond to those notes because the court informed counsel of its intended response. He knew that the jury had sent out another note stating that it had reached a verdict, and that the court planned to accept the verdict without responding to the outstanding notes, because the court announced its intention to recall the jury and take the verdict on the record. Counsel was in the courtroom when the jurors were recalled and knew that the trial court had not yet responded to the notes sent during the recess or asked the jurors if they still desired a response before the verdict was announced. In short, “[i]f defense counsel considered the judge’s intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so” (Alcide, 21 NY3d at 694). Had counsel simply requested that the court respond to the outstanding notes before taking the verdict, or that the court ask the jurors whether they still desired a response to those notes, the court could easily have corrected the alleged error.

Furthermore, to designate this alleged error as a mode of proceedings error would mandate that the trial court respond to any outstanding notes before taking the verdict even if defense counsel affirmatively requests that the court accept the verdict without responding to those notes. Mode of proceedings errors are not waivable and therefore require reversal even if the defense affirmatively consents to the court’s action (see Ahmed, 66 NY2d at 310-311). The rule defendant proposes would therefore require a trial court to ignore a defense request, as a matter of strategy, that the court not respond to a jury note before accepting the verdict.

Defendant’s rule would also incentivize a distinct tactic that diminishes the preservation rule. Here, the defense may have made a strategic choice not to challenge the trial court’s procedure (see King, 27 NY3d at 157). Counsel, who was aware that the jury’s last note before the recess declared a deadlock, may have decided that the jurors were more likely to acquit defendant if they were not given the chance to deliberate further. In such situations, if the alleged error is deemed to be a mode of proceedings error, “it would be unwise for counsel to object and seek correction of the error” (Nealon, 26 NY3d at 162). If the verdict is an acquittal, counsel will have secured the desired trial outcome. If the jury convicts the defendant, counsel will have created an appellate issue requiring automatic reversal and a new trial simply by remaining silent. We decline to create a rule that would incentivize such tactics and would diminish the important purposes underlying the preservation rule.

IV.

The disparate treatment of the two types of errors arises from the practical differences between them; one prevents counsel from “participating meaningfully in this critical stage of the trial” (O’Rama, 78 NY2d at 279), and the other does not. “[I]t is defense counsel who is charged with the single-minded, zealous representation of the client and thus, of all the trial participants, it is defense counsel who best knows the argument to be advanced on the client’s behalf” (People v Hawkins, 11 NY3d 484, 492 [2008]).

The Appellate Division erred in holding that defendant was not required to preserve for appellate review his contention regarding the court’s failure to respond to the jury’s notes. Although the court’s procedure here may have been error, it was not a mode of proceedings error, and we have no jurisdiction to review it. We therefore cannot address the People’s alternative contention that the trial court did not err because the jury implicitly withdrew its earlier requests by stating that it had reached a verdict.

Defendant’s remaining contentions, offered as alternative grounds for affirmance, are without merit.

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

Rivera, J.

(dissenting). In People v O’Rama (78 NY2d 270 [1991]), this Court stated, without reservation, that CPL 310.30 imposes a duty on the trial court to meaningfully respond to a substantive juror inquiry. This requirement is no mere technical nicety, but a core responsibility of the trial court which may not be ignored or abdicated (People v Kisoon, 8 NY3d 129, 134 [2007]; People v Torres, 72 NY2d 1007, 1008-1009 [1988]; People v Ahmed, 66 NY2d 307, 310 [1985]).

A court’s unresponsiveness to a jury’s substantive request for information is no ordinary procedural error, nor an error of de minimis significance. As previously explained by this Court,

“[t]here are few moments in a criminal trial more critical to its outcome than when the court responds to a deliberating jury’s request for clarification of the law or further guidance on the process of deliberations. Indeed, the court’s response may well determine whether a verdict will be reached, and what that verdict will be” (Kisoon, 8 NY3d at 134-135, citing 23 AD3d 18, 20 [2d Dept 2005]).

To ensure judicial vigilance of the proper discharge of this duty, “[a] . . . court’s failure to fulfill the ‘core responsibility’ under O’Rama is treated as a mode of proceedings error” that does not require preservation by defendant (People v Silva, 24 NY3d 294, 299 [2014], quoting Kisoon, 8 NY3d at 135). Quite simply, “[although we have recognized that some departures from the procedures outlined in O’Rama may be subject to rules of preservation, a failure to fulfill the court’s core responsibility is not” (Kisoon, 8 NY3d at 135 [citations omitted]).

Moreover, we are not presented with an attempt to expand the mode of proceedings category to include a “new” error, as my colleagues maintain (majority op at 540-541). Rather, this case merely requires that we apply our existing precedent to an error previously identified as one not subject to our rules of preservation. Thus, the majority’s conclusion that preservation rules apply when a court utterly fails to respond to a juror’s substantive inquiry disregards our commitment to stare decisis. I think this recasting of the duty ill-advised. Our adherence to this venerable doctrine “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process” (People v Taylor, 9 NY3d 129, 148 [2007] [internal quotation marks omitted], quoting Payne v Tennessee, 501 US 808, 827 [1991]). In order to overturn past precedent there must be a compelling justification to do so, which may be found where such precedent “leads to an unworkable rule, or . . . creates more questions than it resolves” (id. at 149), or where “a preexisting rule, once thought defensible, no longer serves the ends of justice or withstands ‘the cold light of logic and experience’ ” (Policano v Herbert, 7 NY3d 588, 604 [2006], quoting Broadnax v Gonzalez, 2 NY3d 148, 156 [2004]).

This Court’s determination that a trial court’s failure to respond constitutes a mode of proceedings error is not unclear, unsettled, unworkable, or rendered outdated. There is likewise no evidence that overturning this established precedent is “consistent with these principles and required by sound policy” (People v Bing, 76 NY2d 331, 338 [1990]). To the contrary, the bright-line rule that a court’s failure to provide any response to a jury’s substantive note is not subject to preservation maintains clarity, and furthers judicial compliance with the legislative intent of CPL 310.30 that no jury request for instruction on the law and matters pertinent to its consideration be left unanswered. Therefore, stare decisis counsels that we should not overturn our Court’s settled precedent.

The majority seeks to pave new ground by recharacterizing a court’s unresponsiveness to a jury’s substantive note as an error of lesser importance to the criminal process than some others that are subject to our rules of preservation (majority op at 541). The majority’s view is difficult to square with this Court’s previous statements that the court’s core responsibility is significant because it has the potential to affect the outcome of the trial (O’Rama, 78 NY2d at 279; Kisoon, 8 NY3d at 134). Moreover, long before O’Rama, Kisoon and Silva, this Court recognized that a court’s obligation to respond to jury notes is an indispensable part of the trial process. In describing Code of Criminal Procedure § 427, predecessor to CPL 310.30 and which similarly mandated that, upon request, a court provide a jury with information concerning a point of law, this Court explained that “[t]he Legislature of this State has . . . made positive and absolute the requirement that ‘the information required must be given’. The answering of such questions is no mere matter of conventional procedure. It is an integral part of the structure of an adequate trial” (People v Gonzalez, 293 NY 259, 263 [1944]).

Nor does it matter, as the majority contends, that defense counsel was on notice of the court’s failure to respond (majority op at 541). The majority in People v Nealon relied on this same argument to impose a preservation requirement in cases where a court fails to comply with the other half of its CPL 310.30 core responsibility, namely the requirement to provide defense counsel with meaningful notice of a jury’s substantive request and an opportunity for counsel to participate in the formulation of a response (26 NY3d 152, 161-162 [2015]). The dissent in Nealon effectively explained why a failure to object is ir-revelant to a mode of proceedings error.

“Conceptually, of course, whether an error is deemed to compromise the basic structure of a trial and thus to qualify as one affecting the mode of proceedings cannot depend upon whether it involves a deviation as to which an objection is capable of being made. Mode of proceedings errors are by reason of their fundamental incompatibility with essential process nonwaivable .... Neither the gravity of such error nor the consequently primary judicial obligation to avoid its commission is logically diminished or relieved by reason of the circumstance that a defendant is able to, but does not contemporaneously, protest its occurrence” (id. at 166 [Lippman, Ch. J., dissenting], citing People v Patterson, 39 NY2d 288, 295 [1976]).

The same is true in this case. Imposition of a preservation requirement is inherently counter to the underlying premise of a mode of proceedings error, which is the type of nonwaivable error that goes to the heart of the trial process. Whether defense counsel objects to a court’s unresponsiveness to a jury’s substantive note is of no moment. What matters is the court’s failure to comply with its mandated duty and core responsibility.

The majority argues no more persuasively here than in Nealon that its preservation rule is necessary to avoid the situation where a court would be required to respond to a jury note against a defendant’s wishes. The majority fundamentally misunderstands the import of CPL 310.30 and our precedent. Defendant’s preference or acquiescence is irrevelant because the duty works on the court, not the defendant. Just as the court may not unilaterally ignore its legislatively imposed responsibility, neither can the defendant absolve the court of this duty by agreeing that the court need not respond to a juror’s substantive request.

As a final point, the majority here contends that the preservation rule is necessary to avoid incentivizing gamesmanship by defense counsel who would merely fail to challenge a CPL 310.30 error in order to create an appellate issue (majority op at 543-544). The argument is no more persuasive in this case than it was in Nealon because it is grounded on speculation about defense counsel’s motives, and demonstrates a misunderstanding of the court’s duty under CPL 310.30. As the dissent in Nealon argued,

“apart from the lack of any empirical basis for the prediction that defense counsel generally would elect not to zealously represent their clients at trial in order to bank an appellate reversal years down the line, the majority’s concern demonstrates a confusion over whose conduct the mode of proceedings doctrine is intended to regulate. It is not counsel’s conduct that is the primary concern of the doctrine, but the court’s. The doctrine recognizes that it is the court, not counsel, that is best situated to assure that the correct procedure is followed when a note requesting instruction issues from a deliberating jury, and that when the court discharges its core obligations there will be no opportunity for gamesmanship of the sort feared” (Nealon, 26 NY3d at 168-169).

In defendant’s case, while the court was discussing with counsel and the prosecutor its response to pending substantive jury notes, the court received indication that the jury had reached a verdict. When the court accepted the verdict without providing any response to the pending notes, or without alternatively asking the jurors whether they had withdrawn their requests, the court failed to comply with its core responsibility under CPL 310.30. The court’s inaction constituted a mode of proceedings error for which preservation is unnecessary, and, under the circumstances of this case, warrants reversal and a new trial (O’Rama, 78 NY2d at 279; Kisoon, 8 NY3d at 135; CPL 310.30; Silva, 24 NY3d at 300, 300 n 1 [a judge’s unresponsiveness to a jury request may lead to a new trial]). Therefore, I dissent and would affirm the Appellate Division.

Chief Judge DiFiore and Judges Pigott, Abdus-Salaam, Stein and Garcia concur; Judge Rivera dissents and votes to affirm in an opinion.

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

      . The jury’s requests for more jury note sheets and for a smoking break are not at issue on appeal. Defendant concedes that those requests were ministerial.

      . The dissent asserts that we are disregarding the doctrine of stare decisis in holding that this particular alleged error is not a mode of proceedings error (see dissenting op at 545-546). We respectfully disagree. As discussed, none of our previous cases in the O’Rama context, including O’Rama itself, considered whether an alleged failure to provide a meaningful response, standing alone, constituted a mode of proceedings error where the court’s obligation to provide meaningful notice to counsel was satisfied. To the extent the Court may have suggested otherwise, this language occurred in dicta, inasmuch as in each of those cases, this Court was considering whether the trial court had satisfied its obligation to provide meaningful notice to counsel (see Walston, 23 NY3d at 989; Alcide, 21 NY3d at 692; Kisoon, 8 NY3d at 135). Further, in Silva, the trial court failed to fulfill both of its core responsibilities, including the responsibility to provide meaningful notice to counsel (see Silva, 24 NY3d at 300). As the dissent acknowledges, meaningful notice to counsel is not at issue in this appeal (see dissenting op at 545 n 1).

      . We have also refused to classify an alleged error as a mode of proceedings error in other contexts where the defendant has the notice and opportunity needed to object (see e.g. People v King, 27 NY3d 147, 157 [2016] [“If defense counsel had an objection to the procedure employed by the trial court, he should have voiced it so that the court could have corrected any alleged error”]; Conceicao, 26 NY3d at 382 [holding that challenge to alleged defect in plea allocution must be preserved by timely objection unless the defendant “faced a practical inability to move to withdraw (the) plea()”]).

      . The court’s core responsibility additionally encompasses its CPL 310.30 duty to notify counsel of a juror’s substantive inquiry, which this Court has explained requires “meaningful notice to counsel of the specific content of the jurors’ request — in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response” (People v Kisoon, 8 NY3d 129, 134 [2007]; see also O’Rama, 78 NY2d at 277 [CPL 310.30 imposes a duty to provide notice to counsel of a jury inquiry and to respond meaningfully]). This duty is not at issue in this appeal.

      . Contrary to the majority’s view, the rule is clearly set forth in our precedent, and cannot be distinguished as mere dicta.

      . The majority’s argument seems particularly misplaced where, as here, the court’s failure to respond to a jury’s substantive note is due to an intervening indication from the jury that it has reached a verdict. Given the law at the time of the defendant’s trial, defense counsel may have relied on decisions from lower courts that treated the jury’s announcement of a verdict as the jury’s implicit withdrawal of its prior request for information (People v Albanese, 45 AD3d 691, 692 [2d Dept 2007], lv denied 10 NY3d 761 [2008]; People v Fuentes, 246 AD2d 474, 475 [1st Dept 1998], lv denied 91 NY2d 941 [1998]).

      . This case is distinguishable from cases where the court attempts to comply with its duty and the defendant claims the response is inadequate. In those cases, the rule of preservation applies (see People v Morris, 27 NY3d 1096 [2016] [decided herewith]).


source: Caselaw Access Project

author: Stein, J.

license: Public Domain

text:
    [55 NE3d 1053, 36 NYS3d 80]
    The People of the State of New York, Respondent, v Scott Barden, Appellant.
    Argued January 5, 2016;
    reargued April 27, 2016;
    decided June 14, 2016

      Richard M. Greenberg, Office of the Appellate Defender, New York City, for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (David M. Cohn and Hilary Hassler of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

On this appeal, we are asked to determine who is chargeable, for statutory speedy trial purposes, with each discrete time period within a pre-readiness adjournment when the People initially request an adjournment to a specific date, defense counsel is unavailable on that date and requests a later date, but the court is unavailable on the later date, resulting in an even longer adjournment. Further, we must decide whether defendant consented to the additional delay occasioned by the court’s calendar when, upon being advised by the court of its next available date, counsel responded, “[t]hat should be fine.” Applying our general rules, we conclude that defendant did not consent to the additional delay attributable to court congestion and, because the People failed to announce readiness within the statutory time period, defendant was entitled to dismissal of the indictment on speedy trial grounds.

Defendant was indicted on charges of identity theft in the first degree, criminal possession of stolen property in the fourth degree, and theft of services (two counts). At several court appearances, the People stated that they were not ready for trial and requested adjournments. During some of those appearances, defense counsel asked for additional time beyond the dates requested by the People. Defendant subsequently moved to dismiss the indictment based on, among other things, a violation of his statutory speedy trial rights. Supreme Court denied defendant’s motion without explanation, implicitly charging the People with only the time actually requested by them and excluding additional time resulting from defense counsel’s other obligations and court congestion. Ultimately, the People did not announce their readiness until the day of trial, more than 16 months after commencement of the criminal action. After a jury trial, defendant was convicted as charged. The Appellate Division modified the judgment by dismissing the identity theft count, but otherwise affirmed (117 AD3d 216 [1st Dept 2014]). A Judge of this Court granted defendant leave to appeal (24 NY3d 959 [2014]).

Where, as here, a felony is included in an indictment, the People must be ready for trial within six months, after subtracting excludable time (see CPL 30.30 [1] [a]). “[O]nce a defendant has shown the existence of an unexcused delay greater than . . . six months, the burden of showing that time should be excluded falls upon the People” (People v Santos, 68 NY2d 859, 861 [1986]; see People v Santana, 80 NY2d 92, 105 [1992]). Under the relevant statute, a court can exclude “the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel” (CPL 30.30 [4] [b]; see People v Worley, 66 NY2d 523, 527 [1985]). On the other hand, pre-readiness delays arising from court congestion or court scheduling problems are chargeable to the People, because court delays do not prevent the People from being ready or declaring readiness in a written off-calendar statement (see People v Chavis, 91 NY2d 500, 504 [1998]; People v Smith, 82 NY2d 676, 678 [1993]; People v Kendzia, 64 NY2d 331, 337-338 [1985]; People v Brothers, 50 NY2d 413, 417 [1980]). Indeed, when the People are not ready and request an adjournment, a later written “statement of readiness can save the People from liability for the remainder of the adjournment period” (People v Stirrup, 91 NY2d 434, 436, 440 [1998]).

In this case, the statutory six month period equated to 184 days. Without explanation, Supreme Court charged the People with 179 days; those days are not at issue on this appeal. Rather, the question before us is whether, in calculating the number of days chargeable to the People, the motion court properly assigned partial responsibility to each of the parties for three adjournments granted between January 5, 2011 and April 13, 2011. In that regard, the parties primarily dispute the meaning of certain language in this Court’s decision in People v Smith (82 NY2d 676 [1993]), in which we stated that

“[adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel’s failure to object to the adjournment or failure to appear does not constitute consent. The adjournments at issue here were, in the first instance, precipitated by the People’s failure to be ready for trial. Other than stating that certain dates were inconvenient, defense counsel never formally consented to the adjournments and did not participate in setting the adjourned dates. Because the actual dates were set either by the court or the prosecution, no justification exists for excluding the additional adjournment time required to accommodate defense counsel’s schedule” (id. at 678 [citation omitted and emphasis added]).

The question here distills to what constitutes participation sufficient to establish a request for, or consent to, an adjournment by defense counsel. As quoted above, Smith states that counsel’s mere failure to object to an adjournment, or indication that a date requested by the People is inconvenient, is not a request or a clear expression of consent for purposes of calculating excludable time under CPL 30.30 (see id. at 678). In this case, counsel did more than merely state that she was unavailable on the dates requested by the People. For several time periods, she explained why she wanted more time. The reasons she gave were for her own convenience, the demands of defendant’s case, and her court schedule for cases unrelated to this defendant, none of which were based on any actions taken by the People. Therefore, it is crucial to determine what portion of each adjournment period is chargeable to each party when, as here, both the People and defendant seek additional time.

For example, on January 5, 2011, the People requested an adjournment until January 26, but defense counsel asked to have until after February 8, stating she had “a date in the Second Circuit on the 8th. I just need to get that done.” The court set the next appearance date for February 9. On the speedy trial motion, the court charged the People only with the time from January 5 through January 26. The court properly charged defendant with the time period (from January 27 through February 9) when defense counsel had commitments on an unrelated federal case and explicitly sought time to prepare herself for that matter, because counsel explicitly requested and, by actively participating in setting the later date, clearly expressed her consent to that additional time (see CPL 30.30 [4] [b]; People v Fuller, 8 AD3d 204, 205 [1st Dept 2004], lv denied 3 NY3d 706 [2004]).

Likewise, on February 9, 2011, when the People requested an adjournment until February 23, defense counsel asked for a date the following week. At the same time, counsel stated that she needed an investigator for defendant’s case and submitted documents seeking a court order to obtain one. The court set a date one week later than that requested by the People. On defendant’s motion, the court charged the People with the days they requested (from February 10 through February 23), but charged defendant with the days thereafter. In that instance, defense counsel had indicated the need for time to hire an investigator and for that person to conduct an investigation. This request also constituted a clear expression of consent to a longer adjournment than that sought by the People, rendering that time (from February 24 through March 2) chargeable to defendant.

Finally, on March 2, 2011, the People sought an adjournment until March 16. Defense counsel stated that, on that date, she would be engaged in a civil trial which had begun two years earlier, and she expressed her strong desire to complete that trial. Counsel, therefore, asked to extend the adjournment until March 28. The court responded, “It has to be after April 8th. April 13th,” to which counsel replied, “[t]hat should be fine.” On the motion, the court properly charged the People with the days they requested (from March 3 through March 16), but apparently excluded all of the time between March 17 and April 13 from the speedy trial calculation. This was error. Defendant should have been charged only with the time that counsel requested to conduct her separate civil trial — that is, March 17 through March 28 — and the People should have been charged with the remaining time, as the portion of the adjournment from March 29 through April 13 was required by the court, itself.

Contrary to the People’s argument, counsel’s accommodation of the court’s schedule — merely by failing to express an objection to the alternate date proposed by the court after it indicated that the date suggested by counsel was not available — cannot, under CPL 30.30, be considered consent to the extension of the adjournment beyond March 28. This Court has held that “[adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay” (Smith, 82 NY2d at 678 [emphasis added]; see People v Liotta, 79 NY2d 841, 843 [1992]). Such consent does not arise by counsel merely indicating that a date suggested by the court is convenient. Thus, a defense counsel’s ambiguous comment such as “[t]hat should be fine” when the court proposes a date is not sufficient to constitute clear consent to defendant being charged with the entire adjournment, including time necessitated by the court’s calendar. Rather, such a generic statement likely signals nothing more than counsel’s availability on a proposed date after the court has indicated that it could not accommodate the date requested by defense counsel when, in the first instance, the adjournment was “precipitated by the People’s failure to be ready for trial” (Smith, 82 NY2d at 678).

Additionally, as noted above, the People bear the burden of establishing which time periods should be excluded from the statutory six months, with no burden being placed on the defendant (see Santana, 80 NY2d at 105; Santos, 68 NY2d at 861). The general rule — that the People should be charged with pre-readiness delays caused by court congestion (see Chavis, 91 NY2d at 504; Stirrup, 91 NY2d at 440; Smith, 82 NY2d at 678; Kendzia, 64 NY2d at 337-338; Brothers, 50 NY2d at 417) — is premised on the idea that such delays do not inhibit the People from declaring readiness in writing, through an off-calendar statement (see Smith, 82 NY2d at 678). That reasoning applies equally well to any portion of a pre-readiness adjournment that is associated with court congestion, regardless of which party is chargeable with the remaining portion or portions of that adjournment. Here, the People could have filed an off-calendar statement of readiness at any time to stop the speedy trial clock, but they never did so. If the People were unsure of whether defense counsel’s statement was an indication of consent to the entire period of the adjournment, they could have asked for clarification on the record; again, the People did not do so. Because the People did not meet their burden, Supreme Court erred to the extent it failed to charge the People with the 16 extra days from March 29 through April 13, which the court, itself, requested. Because those 16 days put the People over the statutory limit, defendant’s CPL 30.30 motion should have been granted and the indictment should have been dismissed.

Defendant also challenges the legal sufficiency of two counts of the indictment, asserting, among other things, that the term “credit card” in Penal Law §§ 165.45 (2) and 165.15 (1) does not include intangible property, such as the numbers associated with a credit card; and that defendant did not constructively possess the credit card numbers, in that they were provided to a hotel by the credit card owner and the hotel used them to charge services at defendant’s request — beyond the authority granted by the owner — but defendant never saw or knew the numbers. While we recognize that there is a division among the Appellate Division Departments on at least some of these issues (compare 117 AD3d 216 [1st Dept 2014], with Matter of Luis C., 124 AD3d 109 [2d Dept 2014]), we have no occasion to reach them due to our resolution of this case on the dispositive speedy trial ground.

Accordingly, the order of the Appellate Division should be reversed, defendant’s CPL 30.30 motion granted, and the indictment dismissed.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Fahey and Garcia concur.

Order reversed, defendant’s CPL 30.30 motion granted and indictment dismissed.


author: Gaucha, J.

text:
    [56 NE3d 193, 36 NYS3d 411]
    S.L., Appellant, v J.R., Respondent.
    Argued May 5, 2016;
    decided June 9, 2016

      Law Offices of Harold R. Burke, West Harrison (Harold R. Burke of counsel), for appellant.

      J.R., New York City, respondent pro se.

      Farber, Pappalardo & Carbonari, White Plains (John A. Pap-palardo and Olivia T. Marotta of counsel), Attorney for the Children.

      Brown Rudnick LLP, New York City (Sigmund S. Wissner-Gross, D. Cameron Moxley, Shivani Poddar and Rahman D. Connelly of counsel), for Domestic Violence Legal Empowerment and Appeals Project and others, amici curiae.
   OPINION OF THE COURT

Gaucha, J.

This case requires that we consider whether Supreme Court properly made a final custody determination without first conducting a plenary hearing. We hold that, on this record, a hearing was required.

After nearly 15 years of marriage, appellant S.L. (Mother) commenced divorce proceedings against respondent J.R. (Father), seeking full custody of their two minor children. Shortly thereafter, Father filed an order to show cause seeking temporary sole legal custody of the children, alleging that he feared for their safety based on a series of alleged incidents involving harassment, extramarital affairs, and abuse of alcohol and prescription medication by Mother. Supreme Court granted Father temporary sole interim legal and physical custody of the children and provided for supervised visitation for Mother. After receiving responsive papers from Mother and the Attorney for the Children, the court issued a second order continuing the interim award of custody for Father and supervised visitation for Mother.

The court later received the report of a court-appointed forensic evaluator, who concluded that Father was the more “psychologically stable” of the two parents. During a subsequent appearance, the court set a briefing schedule and stated that it “may also be in a position to determine custody sua sponte, based on [the] information in this case.” The parties submitted letter briefs regarding Father’s requested relocation and the court’s ability to grant custody to Father without a hearing.

One month later, the court resolved the custody portion of the parties’ dispute: Father was awarded sole legal and physical custody of the children. With regard to visitation, the court noted that, although “the parties plan[ned] to continue to make attempts at reinstating therapeutic or supervised visitation,” both visitation and family therapy had been “suspended” for more than five months. The court did not conduct an eviden-tiary hearing, remarking that a hearing was “not necessary in these circumstances since the allegations are not controverted.” Specifically, the court noted that Mother “acknowledged her involvement in many incidents of disturbing behavior.” The court also cited the opinions of the family therapist, the court-appointed forensic evaluator, and the agency supervising visitation in support of its determination.

The Appellate Division unanimously affirmed (S.L. v J.R., 126 AD3d 682 [2d Dept 2015]). The Court noted that custody determinations “generally may only be made following a full and comprehensive evidentiary hearing,” but held that “no hearing is necessary where, as here, The court possesses adequate relevant information to enable it to make an informed and provident determination as to the child’s best interest’ ” (id. at 682). Pointing to “the parties’ affidavits and the report prepared by the court-appointed forensic evaluator,” the Court reasoned that Mother “admits” Father’s allegations “regarding her emotionally destructive and sometimes violent behavior toward him and the parties’ two children” (id.). In addition, “the forensic evaluator, who interviewed the parties and the subject children, concluded that [Father] was the more stable parent, and that [Father] was able to make sound parenting decisions for the children” (id.). The Court also noted that “the attorney for the children supported the award of custody” to Father (id.).

We granted leave to appeal (26 NY3d 910 [2015]) and now reverse.

It is well-settled that parents have a fundamental right to custody of their children (Santosky v Kramer, 455 US 745, 753-754 [1982]; Matter of Ella B., 30 NY2d 352, 357 [1972]). However, in child custody determinations, neither parent has a “prima facie right to the custody of the child” (Domestic Relations Law § 70 [a]). Instead, in assessing questions of child custody, courts must “make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness” (Eschbach v Eschbach, 56 NY2d 167, 171 [1982] [internal quotation marks and citations omitted]). In all custody disputes between divorced parents, “the first concern of the court is and must be the welfare and the interests of the children” (Matter of Lincoln v Lincoln, 24 NY2d 270, 271-272 [1969]). The interests of the children are always “paramount” and the “rights of their parents must, in the case of conflict, yield to that superior demand” (id. at 272).

Our precedent makes clear that custody determinations should “[generally” be made “only after a full and plenary hearing and inquiry” (Obey v Degling, 37 NY2d 768, 770 [1975]). This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child. Wherever possible, “[c]ustody of children should be established on a long-term basis”; “children should not be shuttled back and forth between divorced parents” merely because of changed circumstances “so long as the custodial parent has not been shown to be unfit” (id. at 770). Given the goals of stability and permanency, as well as the weight of the interests at stake, the societal cost of even an occasional error in a custody proceeding is sizeable. Custody determinations therefore require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child. The value of a plenary hearing is particularly pronounced in custody cases in light of the subjective factors — such as the credibility and sincerity of the witnesses, and the character and temperament of the parents— that are often critical to the court’s determination.

But in light of our guiding principle — the best interest of the child — there can be “no absolutes” in child custody cases (Eschbach, 56 NY2d at 171; Friederwitzer v Friederwitzer, 55 NY2d 89, 93 [1982]). Custody determinations must be entrusted to the sound discretion of the trial court (Matter of Jewish Child Care Assn. of N.Y. [Sanders], 5 NY2d 222, 228 [1959]). Accordingly, the “general” right to a hearing in custody cases is not an absolute one.

Here, the Appellate Division upheld Supreme Court’s decision not to conduct an evidentiary hearing based on its determination that the court possessed “adequate relevant information to enable it to make an informed and provident determination as to the child’s best interest.” This holding was error.

The undefined and imprecise “adequate relevant information” standard applied by the courts below tolerates an unacceptably-high risk of yielding custody determinations that do not conform to the best interest of a child — the first and paramount concern of the court. Nor does this standard adequately protect a parent whose fundamental right — the right “to control the upbringing of a child” (Matter of Maxwell, 4 NY2d 429, 439 [1958]) — hangs in the balance. For instance, in rendering a final custody award without a hearing, Supreme Court appeared to rely on, among other things, hearsay statements and the conclusion of a court-appointed forensic evaluator whose opinions and credibility were untested by either party. A decision regarding child custody should be based on admissible evidence, and there is no indication that a “best interest” determination was ever made based on anything more reliable than mere “information.” Moreover, while Supreme Court purported to rely on allegations that were “not controverted,” the affidavit filed by Mother plainly called into question or sought to explain the circumstances surrounding many of the alleged “incidents of disturbing behavior.” These circumstances do not fit within the narrow exception to the general right to a hearing.

We take no position on whether the award of custody to Father was an appropriate result; we hold only that, on this record, the Appellate Division erred in holding that a hearing was not required based on an application of the “adequate relevant information” standard. In doing so, we reaffirm the long-established principle that, as a general matter, custody determinations should be rendered only after a full and plenary hearing. We decline, however, to fashion a “one size fits all” rule mandating a hearing in every custody case statewide. However, where, as here, facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. Accordingly, a court opting to forgo a plenary hearing must take care to clearly articulate which factors were — or were not — material to its determination, and the evidence supporting its decision. Under the circumstances of this case, a plenary hearing was necessary.

The order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur; Chief Judge DiFiore taking no part.

Order reversed, with costs, and case remitted to Supreme Court, Westchester County, for further proceedings in accordance with the opinion herein.


author: Fahey, J.

text:
    [56 NE3d 197, 36 NYS3d 415]
    In the Matter of Westchester Joint Water Works, Appellant, v Assessor of the City of Rye, Respondent, and Rye Neck Union Free School District, Intervenor-Respondent. (And Other Proceedings.)
    Argued April 27, 2016;
    decided June 9, 2016

      McCarthy Fingar LLP, White Plains (Stephen Davis of counsel), for appellant.

      Shaw, Perelson, May & Lambert, LLP, Valhalla (Marc E. Sharff of counsel), for intervenor-respondent.

      Harris Beach PLLC, White Plains (.Darius P. Chafizadeh, A. Vincent Buzard and Christopher H. Feldman of counsel), for respondent.
   OPINION OF THE COURT

Fahey, J.

This appeal presents the question whether a proceeding dismissed for an unexcused failure to comply with the mailing requirements of Real Property Tax Law § 708 (3) may be recommenced pursuant to CPLR 205 (a). We conclude that it may not.

Facts and Background

Petitioner commenced nine separate tax certiorari proceedings against respondent Assessor of the City of Rye (City) challenging the real property tax assessments for each tax year from 2002 through 2010 with respect to two parcels owned by petitioner. The parcels are respectively assigned tax identification numbers 200-1-9 (lot 9) and 200-1-10 (lot 10), and each such parcel contains what the record characterizes as “certain water pipes installed over several decades.” Lot 10 is located entirely within the Rye City School District (City Schools), and what apparently was timely notice of the subject proceedings was provided to that school district. Here our sights are set primarily upon lot 9, which petitioner believed to be located within the City Schools but which, in actuality, lies within intervenor Rye Neck Union Free School District (District).

Pursuant to RPTL 708 (3), within 10 days of the service of the notice of petition and petition on a municipality in a tax certiorari proceeding, a petitioner must mail a copy of the same documents to the superintendent of schools of “any school district within which any part of the real property on which the assessment to be reviewed is located.” That is, petitioner was required to mail a copy of the notice of petition and petition in each such proceeding to the District’s superintendent within the statutorily prescribed period. It is undisputed that petitioner did not comply with those notice requirements before petitioner and the City reached an agreement in principle resolving the proceedings. It is similarly undisputed that, before that tentative settlement was finalized, petitioner recognized its error.

Petitioner subsequently notified the District of the mistake, mailed to the District’s superintendent copies of the petition and notice thereof in each of the subject proceedings, and sought the District’s consent to the proposed settlement of each such proceeding. The District, however, did not accommodate that request and instead initiated motion practice that resulted in two orders: one in which Supreme Court permitted the District to intervene in these proceedings (see 37 Misc 3d 238, 240-241 [Sup Ct, Westchester County 2012]), and a second in which Supreme Court granted the District’s motion to dismiss the petitions with prejudice for failure to comply with the mailing requirements of RPTL 708 (3) and denied petitioner’s cross motion for leave to recommence these proceedings pursuant to CPLR 205 (a) (37 Misc 3d at 242, 251). In the second order Supreme Court also denied the City’s cross motion to dismiss the petitions against it on the ground that the City lacked standing to seek such relief inasmuch as it was the District, not the City, that did not receive proper notice pursuant to RPTL 708 (3) (37 Misc 3d at 246-247, 251).

Only the second order was challenged on the cross appeals, and the Appellate Division modified that paper essentially by denying the motion of the District insofar as it sought dismissal of the parts of the petitions pertaining to lot 10 (that is, the lot outside the District’s boundaries but within the adjacent City Schools) and granting the cross motion of the City insofar as it sought dismissal of the parts of the petitions pertaining to lot 9 (120 AD3d 1352, 1352-1353 [2d Dept 2014]). Otherwise, the Appellate Division noted petitioner’s concession that “it failed to give notice of the proceedings to the Superintendent of the District pursuant to RPTL 708 (3) . . . and lacked good cause for [that error]” (120 AD3d at 1354) before ruling that the parts of the petitions pertaining to lot 9 were properly dismissed based on “the lack of good cause excusing the petitioner’s noncompliance” with that statute (id.). The Court also ruled that, “[s]ince a dismissal pursuant to RPTL 708 (3) operates as a dismissal upon the merits, the relief afforded by CPLR 205 (a) is unavailable” (120 AD3d at 1354). We subsequently granted petitioner “leave to appeal as against the [District]” only (25 NY3d 1098, 1098 [2015]), and we now affirm the Appellate Division order insofar as appealed from, albeit for slightly different reasons.

Analysis

A.

Our analysis begins with an historical review of RPTL 708 (3). As of January 1, 1996, RPTL 708 (3) provided that an affected school board was a necessary party to a tax certiorari proceeding, and that a copy of the notice of petition and petition commencing such a proceeding was to be mailed to the clerk of that board (or, where a board did not employ a clerk, to a trustee thereof). As it then was constituted, RPTL 708 (3) exempted an affected school district from participation in such a matter.

It was not long before the oddity in requiring school boards, but not school districts, to be parties to tax certiorari proceedings became problematic. In July 1996, the State Office of Real Property Services noted the issue. It supported proposed changes to RPTL 708 (3) intended to treat school boards and school districts as one, and to provide school districts with intervenor status in tax certiorari proceedings (see Bill Jacket, L 1996, ch 503 at 7-12). In addition to resolving the paradox in RPTL 708 (3), those changes were also intended to create “tax savings to municipalities and school districts” — ostensibly through the reduction of litigation fees with respect to tax certiorari proceedings — and to “improve a district’s ability to manage its tax liability” (Bill Jacket, L 1996, ch 503 at 7). Such adjustments were suggested “at the request of the schools themselves, in recognition of the fact that it would be time consuming and expensive for schools to be made necessary parties to all tax certiorari proceedings, both large and small” (id.).

In July 1996, the legislature amended RPTL 708 (3) by, among other things, deleting the provision requiring a school board to be a necessary party to a tax certiorari proceeding and implicitly providing intervenor status to school districts affected by such matters (see L 1996, ch 503, § 1). To give school districts a meaningful opportunity to participate in tax certiorari proceedings, the legislature, subject to exceptions inapplicable to this case, modified the notice requirements of that statute so as to provide that a petitioner must mail the notice of petition and the petition in such a proceeding to the superintendent of an affected school district within 10 days of the date of service of those papers. Significantly, the legislature also strengthened compliance with those requirements; under the “new” version of RPTL 708 (3), “[failure to comply with the provisions of [that] section shall result in the dismissal of the petition, unless excused for good cause shown.”

B.

From that historical sketch we turn to the interplay of RPTL 708 (3) and CPLR 205 (a), and specifically to the question whether a proceeding dismissed pursuant to RPTL 708 (3) may be recommenced under CPLR 205 (a). The issue has split the Appellate Division.

In Matter of MM 1, LLC v LaVancher (72 AD3d 1497, 1498 [4th Dept 2010]), the Fourth Department permitted recommencement under CPLR 205 (a) of a proceeding dismissed pursuant to RPTL 708 (3) based on the petitioner’s failure to comply with the mailing requirements of the latter statute. The Second Department took the same approach in Matter of Consolidated Edison Co. of N.Y., Inc. v Assessor & Bd. of Assessment Review for the Town of Pleasant Val. (82 AD3d 761, 763 [2d Dept 2011]). That Court concluded that the trial court properly granted a motion to recommence pursuant to CPLR 205 (a) proceedings dismissed under RPTL 708 (3) where the respondents suffered no prejudice as a result of the petitioner’s failure to comply with the notice provisions of the latter statute.

By contrast, in Matter of Wyeth Holdings Corp. v Assessor of the Town of Orangetown (84 AD3d 1104 [2d Dept 2011]), which was decided approximately 2V2 months after Consolidated Edison Co. (82 AD3d 761), a different panel of the Second Department refused to permit recommencement pursuant to CPLR 205 (a), ruling that “a dismissal pursuant to RPTL 708 (3) operates as a dismissal upon the merits,” thereby rendering “the relief afforded by CPLR 205 (a) . . . unavailable” (Wyeth Holdings Corp., 84 AD3d at 1107 [internal quotation marks omitted]). Matter of Cornwall Yacht Club, Inc. v Assessor (110 AD3d 1070 [2d Dept 2013], lv denied 23 NY3d 904 [2014]) later yielded a similar result; in that case, the Second Department concluded that the trial court providently exercised its discretion in denying the petitioner’s cross motion seeking, among other things, leave to recommence through CPLR 205 (a) proceedings dismissed for failure to comply with the mailing requirements of RPTL 708 (3). The order appealed from is consistent with Wyeth Holdings Corp. and Cornwall Yacht Club, Inc. inasmuch as the Appellate Division concluded that CPLR 205 (a) does not permit recommencement where a proceeding is dismissed upon the merits pursuant to the RPTL. In that Court’s view, the terms of CPLR 205 (a), not those of RPTL 708 (3), preclude recommencement here (see 120 AD3d at 1354).

C.

We conclude that recommencement of a proceeding pursuant to CPLR 205 (a) is unavailable where, as here, such proceeding is dismissed for an unexcused failure to comply with the mailing requirements of RPTL 708 (3). Our determination is based not upon petitioner’s failure to meet the requirements of CPLR 205 (a), but upon our conclusion that RPTL 708 (3) does not permit resort to the recommencement largess of the CPLR. The reason for our conclusion is threefold.

First, because RPTL 708 (3) comprehensively addresses the result where a proceeding is dismissed for failure to comply with the mailing requirements of that section, a petitioner may not reach outside of the RPTL to recommence such a proceeding. The language of RPTL 708 (3) providing that the dismissal for failure to comply with the mailing provisions of that statute shall be excused only “for good cause shown” reflects an intent to permit a petitioner who has ignored the subject mailing requirements to proceed only where the error is found to be excusable.

In W.T. Grant Co. v Srogi (52 NY2d 496 [1981]) we observed that, “[a]s a general rule, there should be no resort to the provisions of the CPLR in instances where the [RPTL] expressly covers the point in issue” (id. at 514; see CPLR 101 [“The (CPLR) shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute”]). Although W.T. Grant Co. considered a question — whether the petitioners were entitled to the discretionary allowance authorized by CPLR 8303 (a) (2) — unlike the main issue on this appeal, its instruction applies equally here. RPTL 708 (3) expressly covers the result where a petitioner fails to comply with the mailing requirements of that statute, that is, dismissal in all such instances except where good cause is shown for the error. Under the logic of W.T. Grant Co., the procedure set forth in the RPTL controls. The recommencement remedy of CPLR 205 (a) is unavailable to the petitioner.

Second, the conclusion that RPTL 708 (3) does not leave room for operation of CPLR 205 (a) is consistent with the rule of statutory construction requiring that “effect and meaning must, if possible, be given to [all parts of a] statute” (McKinney’s Cons Laws of NY, Book 1, Statutes § 98 [a]; see McKinney’s Cons Laws of NY, Book 1, Statutes § 144). RPTL 708 (3) requires that where there is no “good cause” to avoid dismissal of a proceeding commenced pursuant to RPTL article 7, that proceeding is finally and conclusively dismissed. To construe RPTL 708 (3) otherwise, that is, to conclude that CPLR 205 (a) permits recommencement of a proceeding dismissed pursuant to RPTL 708 (3), would be to render the “good cause” language in section 708 (3) ineffective (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001] [“Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning” (internal quotation marks omitted)]).

Third, the comprehensive reach of RPTL 708 (3) in this setting is consistent with the legislative intent of that statute. The development of RPTL 708 (3) shows that the “current” version of that statute was structured so as to allow school districts to avoid the expense of participating in every tax certiorari proceeding. To further that aim, the legislature included the provisions requiring that the superintendent of an affected school district be timely notified of the commencement of such a proceeding.

The mailing requirements ensure that an affected school district is promptly notified of a tax certiorari proceeding so as to allow that district to determine whether to participate in that matter and whether to reserve monies to satisfy an adverse ruling. By the time it enacted the current version of RPTL 708 (3), the legislature had passed Education Law § 3651 (1-a) (see L 1988, ch 588, § 1), which authorizes the creation of a reserve fund by a school district to pay judgments or claims in tax certiorari proceedings. However, “the total of the monies held in such reserve fund shall not exceed that amount which might reasonably be deemed necessary to meet anticipated judgments and claims arising out of such tax certiorari proceedings” (Education Law § 3651 [1-a]).

By amending RPTL 708 (3), the legislature allowed school districts to reserve funds to satisfy judgments in tax certiorari proceedings. That right of reservation, however, extended only to the extent funds reserved “might reasonably be deemed necessary to [pay] anticipated judgments and claims” (Education Law § 3651 [1-a]). A school district of necessity must know of a proceeding in order to be able to estimate the amount it is permitted to set aside. The notice requirements the legislature included in RPTL 708 (3) act to balance the strictures of the Education Law. A petitioner who ignores the mailing requirements of RPTL 708 (3) and simultaneously denies a school district the opportunity to economically address a tax certiorari proceeding is not permitted to recommence a proceeding dismissed based upon such noncompliance. To do so would be to undermine the aims of fairness and efficiency that prompted the amendments to RPTL 708 (3) (see Bill Jacket, L 1996, ch 503 at 7).

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

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein and Garcia concur.

Order insofar as appealed from affirmed, with costs.

      . There are exceptions to the notice requirements that do not apply to the District. Those exceptions notwithstanding, RPTL 708 (3) specifically provides that
      “one copy of the petition and notice shall be mailed within [10] days from the date of service thereof... to the superintendent of schools of any school district within which any part of the real property on which the assessment to be reviewed is located .... [T]he school district. . . shall [not] thereby be deemed to have been made a party to the proceeding. Proof of mailing one copy of the petition and notice to the superintendent of schools . . . shall be filed with the court within [10] days of the mailing. Failure to comply with the provisions of this section shall result in the dismissal of the petition, unless excused for good cause shown.”

      . Pursuant to CPLR 205 (a),
      “[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

      . As noted, RPTL 708 (3) provides that, in a proceeding pursuant to RPTL article 7, where a petitioner fails to timely mail copies of a petition and notice of petition to the superintendent of an affected school district the petition shall be dismissed, “unless [the error is] excused for good cause shown.” CPLR 205 (a), in turn, permits recommencement of what was a timely-commenced action within six months of a dismissal based on anything other than (1) a voluntary discontinuance; (2) failure to obtain personal jurisdiction over the defendant; (3) failure to prosecute; or (4) a final judgment upon the merits.