author: Smith, J.

text:
    [971 NE2d 350, 948 NYS2d 220]
    In the Matter of Lisa Harbatkin, Appellant, v New York City Department of Records and Information Services et al., Respondents.
    Argued April 25, 2012;
    decided June 5, 2012

      POINTS OF COUNSEL

      Greenberg Traurig LLP, Albany (Michael J. Grygiel, William A. Hurst and Cynthia E. Neidl of counsel), for appellant.
    I. The Appellant Division erred in finding that the City carried its burden of establishing that historical information contained in its “anti-Communist” investigation files is specifically exempt from disclosure under the Freedom of Information Law. (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562; Matter of Westchester Rockland Newspapers v Mosczydlowski, 58 AD2d 234; Matter of Russo v Nassau County Community Coll., 81 NY2d 690; Matter of Newsday, Inc. v Sise, 71 NY2d 146, 486 US 1056; Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246; Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359; Matter of Mantica v New York State Dept. of Health, 94 NY2d 58; Matter of Gould v New York City Police Dept., 89 NY2d 267; Matter of Journal Publ. Co. v Office of Special Prosecutor, 131 Misc 2d 417; Matter of Fink v Lefkowitz, 47 NY2d 567.) II. The promises of confidentiality made by the New York City Board of Education behind closed doors with the effect of shielding its own conduct from public scrutiny deserve little weight in the balancing process. (Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477; Matter of Johnson v New York City Police Dept., 257 AD2d 343; Matter of Scarola v Morgenthau, 246 AD2d 417; Mulgrew v Board of Educ. of the City School Dist. of the City of N.Y., 31 Misc 3d 296, 87 AD3d 506; Matter of LaRocca v Board of Educ. of Jericho Union Free School Dist., 220 AD2d 424; S-P Drug Co. v Smith, 96 Misc 2d 305.) III. In demanding that petitioner consent to restrictions on her free speech rights, the City imposed unconstitutional conditions on her research activities, which also violate the First Amendment’s content-neutrality requirement and are devoid of the necessary procedural safeguards. (Dolan v City of Tigard, 512 US 374; Perry v Sindermann, 408 US 593; Hannegan v Esquire, Inc., 327 US 146; Board of Ed., Island Trees Union Free School Dist. No. 26 v Pico, 457 US 853; Coe v Town of Blooming Grove, 567 F Supp 2d 543; Van Arnam v General Servs. Admin., 332 F Supp 2d 376; Murdock v Pennsylvania, 319 US 105; Invisible Empire Knights of Ku Klux Klan v City of W. Haven, 600 F Supp 1427; Eastern Conn. Citizens Action Group v Powers, 723 F2d 1050; Brooklyn Inst. of Arts & Sciences v City of New York, 64 F Supp 2d 184.)

      Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth I. Freedman, Leonard Koerner and Marilyn Richter of counsel), for respondents.
    I. The courts below correctly determined that disclosure of the identifying information concerning the individuals named in the restricted series files would constitute an unwarranted invasion of personal privacy. The privacy interests of the surviving subjects of the investigation and their relatives outweigh petitioner’s interest in disclosing or publishing the names of teachers contained in the records. (Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477; Matter of Bahnken v New York City Fire Dept., 17 AD3d 228, 6 NY3d 701; Matter of Scott, Sardano & Pomeranz v Records Access Officer of City of Syracuse, 65 NY2d 294; Matter of Johnson v New York City Police Dept., 257 AD2d 343, 94 NY2d 791; Matter of De Oliveira v Wagner, 274 AD2d 904; Matter of Buffalo Broadcasting Co. v New York State Dept. of Correctional Servs., 174 AD2d 212, 79 NY2d 759; Matter of Irwin v Onondaga County Resource Recovery Agency, 72 AD3d 314; Matter of Dobranski v Houper, 154 AD2d 736; Matter of Pennington v Clark, 16 AD3d 1049, 5 NY3d 712; Matter of Bellamy v New York City Police Dept., 87 AD3d 874.) II. The requirement that petitioner agrees not to copy, publish, disseminate or record the names and confidential identifying information in the restricted files does not violate her constitutional First Amendment rights to free speech. (New York Pub. Interest Research Group v Carey, 42 NY2d 527; Mastrovincenzo v City of New York, 435 F3d 78; Ward v Rock Against Racism, 491 US 781; Members of City Council of Los Angeles v Taxpayers for Vincent, 466 US 789; Hill v Colorado, 530 US 703; Los Angeles Police Dept. v United Reporting Publishing Corp., 528 US 32; Whalen v Roe, 429 US 589; Detroit Edison Co. v NLRB, 440 US 301; Nixon v Administrator of General Services, 433 US 425; Matter of New York State United Teachers v Brighter Choice Charter School, 15 NY3d 560.)

      Miller Korzenik Sommers LLP, New York City (Itai Maytal of counsel), Sabin, Bermant & Gould LLP (Richard A. Bernstein and Neil M. Rosenhouse of counsel), David H. Tomlin and Karen Kaiser, Counsel for Associated Press, Leon Friedman, Counsel for Pen American Center, Polly Grunfeld Sack, General Counsel for GateHouse Media, Inc., Fairport, Jonathan Donnellan and Ravi V. Sitwala, New York City, Counsel for The Hearst Corporation, George Freeman, David E. McCraw and Dana Green, Counsel for The New York Times Company, for Advanced Publications, Inc. and others, amici curiae.
    I. The Appellate Division misread this Court’s sui generis decision in Matter of New York Times Co. v City of N.Y. Fire Dept. (4 NY3d 477 [2005]) and overextended the “unwarranted invasion of privacy” exemption to the Freedom of Information Law. (Matter of Tri-State Publ. Co. v City of Port Jervis, 138 Misc 2d 147; James v

      Delilah Films, 144 Misc 2d 374; Brinkley v Casablancas, 80 AD2d 428; Haelan Labs., Inc. v Topps Chewing Gum, Inc., 202 F2d 866; Rosemont Enters. v Random House, 58 Misc 2d 1, 32 AD2d 892.) II. The Appellate Division erred in not recognizing as tenuous, at best, any privacy interests conceivably at stake in the anti-Communist files and in not recognizing that the overwhelming public interest in the anti-Communist files tips in favor of complete disclosure. (Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; People v Jones, 73 NY2d 427; Matter of New York State United Teachers v Brighter Choice Charter School, 15 NY3d 560; Matter of Gould v New York City Police Dept., 89 NY2d 267; Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75.)
   OPINION OF THE COURT

Smith, J.

In the middle years of the twentieth century, the New York City Board of Education investigated a large number of teachers and other employees who it suspected of being present or former members of the Communist Party. The investigation included interviews with many such people, who were promised confidentiality and asked to provide the names of those who had been in the party with them.

An historian of the period now seeks disclosure under the Freedom of Information Law (FOIL) of unredacted transcripts of the interviews. We hold that she is entitled to everything in the transcripts except material that would identify informants who were promised confidentiality.

I

It seems that the Board of Education’s “Anti-Communist Investigations” existed as early as 1936 and as late as 1962, but were at their most intense in the 1940s and 1950s. During that time, according to the petition in this case, an assistant corporation counsel for New York City “was assigned full-time for nearly a decade to ferret out alleged Communists and unrepentant former Communists in the New York City public school and university system.” The records generated by the investigation include, according to the City, documentation of some 1,100 interviews.

According to a random sampling of the records by the City, all of the interviews included a promise of confidentiality, couched in very similar language. The interviewer would typically begin by saying that “there has been and will be no publicity given to the fact that you and I are having this discussion.” He would add that the interview was “a matter of strict confidence between the Superintendent of Schools, acting through me, and yourself.” Sometimes the interviewee would ask for, and receive, more assurance on that subject. The City points to one interview transcript that contains several such exchanges, including the following:

“I know that the sins of the parents are visited upon their children, and it’s quite a thing for my son—
“Q. Well, nobody would know. This is strictly confidential.
“A. I wouldn’t want him, under any circumstance, to find out.
“Q. No, he won’t, don’t you worry about that. . . .
“A. . . . rather than have any repercussion on my son, I would—
“Q. Please accept my word for it—so just don’t talk about it any more, there will be none, because, believe me, you are not the first teacher we have spoken to under these circumstances—there have been a substantial number, believe me—nobody knows they have been here, not even their principals; in some cases, like in your case, the members of their family don’t know; they will never know, it’s a closed door, so don’t be concerned about it.”

Petitioner is an historian with a personal reason for her interest in this bit of history: Both her parents were targets of the Anti-Communist Investigations, and her mother was among those interviewed. Beginning in 2007, petitioner sought access to the City’s records relating to the investigations. She was granted access to some records, but the City’s Department of Records and Information Services expressed concern that some of the material she sought would invade the privacy of people identified in the files. Eventually, the Department adopted a rule, the effect of which is to require redaction of any names and other identifying information, unless the person in question, or his or her legal heirs or custodians, has agreed to disclosure (see 49 RCNY 3-02).

As a result, petitioner has seen only redacted versions of the interview transcripts. For example, one transcript in the record on appeal contains this among many similar passages:

“Q. I see. All right. Now let’s take this third group.
Who were the members of this group that you recall?
“A. [lengthy redaction] this [redaction], you say, [redaction]—and that red-haired girl, [redaction].
“Q. That’s [redaction]?
“A. Right.”

The City offered petitioner access to unredacted files on condition “that she agree not to publish names,” a condition she rejected. She brought this proceeding under article 78 of the CPLR to require the Department to disclose the files without redaction.

Supreme Court dismissed the petition (2010 NY Slip Op 33774[U] [2010]), holding that the City was entitled to redact the documents to avoid an “unwarranted invasion of personal privacy” (Public Officers Law § 87 [2] [b]), and the Appellate Division affirmed (Matter of Harbatkin v New York City Dept. of Records & Info. Servs., 84 AD3d 700 [1st Dept 2011]). Petitioner appealed as of right to this Court pursuant to CPLR 5601 (b) (1), which permits such appeals “where there is directly involved the construction of the constitution of the state or of the United States,” and also moved for permission to appeal pursuant to CPLR 5602 (a). We retained the appeal as of right, and refrained from deciding the motion for permission to appeal, pending oral argument.

We now conclude that petitioner’s constitutional arguments lack substance, and therefore dismiss the appeal as of right. We grant the motion for permission to appeal, and modify the Appellate Division order, permitting the City to redact only names and other identifying details relating to informants who were promised confidentiality.

II

FOIL requires government agencies to “make available for public inspection and copying all records” subject to a number of exemptions (Public Officers Law § 87 [2]). The exemption at issue in this case permits an agency to deny access to records that “if disclosed would constitute an unwarranted invasion of personal privacy” (Public Officers Law § 87 [2] [b]). Public Officers Law § 89 (2) (b) says that “[a]n unwarranted invasion of personal privacy includes, but shall not be limited to” seven specified kinds of disclosure. In a case, like this one, where none of the seven specifications is applicable, a court “must decide whether any invasion of privacy ... is ‘unwarranted’ by balancing the privacy interests at stake against the public interest in disclosure of the information” (Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 485 [2005]).

We begin by considering the redaction of names and identifying details of people, other than the people interviewed, mentioned in the interview transcripts. We conclude that today, more than half a century after the interviews took place, the disclosure of the deleted information would not be an unwarranted invasion of personal privacy. Certainly, this was not always true. At the time of the investigations, and for some years thereafter, public knowledge that people were named as present or former Communists would have subjected them to enormous embarrassment, or worse. But that embarrassment would be much diminished today—both because the activity of which they were accused took place so long ago, and because the label “Communist” carries far less emotional power than it did in the 1950s.

We do not say that disclosure will be completely harmless to those named in the documents, if they are still alive, or to members of their families who care about their memories (see Matter of New York Times Co., 4 NY3d at 484-485 [recognizing that a right of privacy exists in the affairs of the dead]). But the diminished claims of privacy must be weighed against the claims of history. The story of the Anti-Communist Investigations, like any other that is a significant part of our past, should be told as fully and as accurately as possible, and historians are better equipped to do so when they can work from uncensored records. Petitioner, or any other historian trying to trace the course of the investigations, would obviously face a serious handicap if required to work with the redacted transcript from which we quoted above.

We strike a different balance, however, when we consider petitioner’s request for the names of interviewees who were promised that no one would find out they were being interviewed. We find it unacceptable for the government to break that promise, even after all these years. We quoted earlier in this opinion from the interview of a teacher who feared that her son might learn she was being questioned about Communist activities. It is unlikely that she is still alive—the interview shows that her teaching career began in 1934 or earlier—but her son may be. The risk that he would be hurt or embarrassed by learning now of his mother’s interview may be small, but a representative of New York City’s government solemnly assured her that the government would not subject him to that risk. Perhaps there will be a time when the promise made to her, and to others similarly situated, is so ancient that its enforcement would be pointless, but that time is not yet.

Accordingly, the order of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed, without costs.

Chief Judge Lippman and Judges Cipakick, Graffeo, Read, Pigott and Jones concur.

Order modified, etc.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [971 NE2d 353, 948 NYS2d 223]
    The People of the State of New York, Appellant, v Lamarr Reid, Respondent.
    Argued May 1, 2012;
    decided June 5, 2012

      POINTS OF COUNSEL

      P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for appellant.
    I. A defendant can open the door to otherwise inadmissible evidence barred by the Confrontation Clause. (Bruton v United States, 391 US 123; People v Safian, 46 NY2d 181; Richardson v Marsh, 481 US 200; Crawford v Washington, 541 US 36; Beech Aircraft Corp. v Rainey, 488 US 153; Tennessee v Street, 471 US 409; United States v Francois, 295 F Supp 2d 60; People v Gladden, 298 AD2d 462; People v Wilson, 297 AD2d 607; Lee v McCaughtry, 892 F2d 1318.) II. Defendant opened the door to rebutting testimony and County Court properly exercised its discretion when it allowed the trial prosecutor to make an inquiry to counter the incomplete and misleading information elicited by defendant. (People v Hicks, 35 AD3d 1027; People v Fiore, 12 NY2d 188; People v Mateo, 2 NY3d 383; People v Rojas, 97 NY2d 32; People v Melendez, 55 NY2d 445; United States v Cruz-Diaz, 550 F3d 169; People v Buchanan, 145 NY 1; People v Massie, 2 NY3d 179.) III. Even assuming Agent Marc Maurino’s testimony was admitted in violation of defendant’s right of confrontation, in view of the evidence of defendant’s guilt, the error was harmless. (People v Eastman, 85 NY2d 265; People v Douglas, 4 NY3d 777; People v Crimmins, 36 NY2d 230; People v Goldstein, 6 NY3d 119; People v Rawlins, 10 NY3d 136.)

      Bruce Evans Knoll, Albany, for respondent.
    I. The Appellate Division correctly determined that the reversal of Lamarr Reid’s conviction was the proper remedy after his 6th Amendment right of confrontation was violated when a witness was asked and responded to a question by the prosecutor by referencing an eyewitness to the crime and the only eyewitness to the crime was the codefendant who was precluded from testifying pursuant to Bruton v United States (391 US 123 [1968]) and Crawford v Washington (541 US 36 [2004]). (People v Nesbitt, 77 AD3d 854, 15 NY3d 954; People v Fairweather, 69 AD3d 876; People v Rawlins, 10 NY3d 136; People v Melendez, 55 NY2d 445; People v Hardy, 4 NY3d 192; People v Berry, 49 AD3d 888; People v Johnson, 7 AD3d 732; People v Eisenberg, 22 NY2d 99; People v McNerney, 6 AD3d 1107, 3 NY3d 678; People v Pugh, 236 AD2d 810, 89 NY2d 1099.) II. The conviction was not supported by legally sufficient evidence. (People v Bleakley, 69 NY2d 490; People v Peele, 73 AD3d 1219; People v Joseph, 68 AD3d 1534, 14 NY3d 889; People v Stroman, 83 AD2d 370; People v Cohen, 223 NY 406; People v Garafolo, 44 AD2d 86.) III. The Appellate Division erred in not finding that the integrity of the grand jury was impaired by the actions of the prosecutor. (Schmerber v California, 384 US 757; People v Goldston, 6 AD3d 736; People v Hunt, 18 AD3d 891; People v Huston, 88 NY2d 400; People v Moffitt, 20 AD3d 687, 5 NY3d 854.) IV County Court erred in its Sandoval ruling. (People v Briggs, 166 AD2d 210; People v Bradley, 99 AD2d 513.) V County Court erred both in its Molineux ruling and in allowing the People to violate and go beyond the scope of the ruling. ((People v Blair, 90 NY2d 1003; People v Hudy, 73 NY2d 40; People v Alvino, 71 NY2d 233; People v Molineux, 168 NY 264; People v Vails, 43 NY2d 364; People v Williams, 28 AD3d 1005; People v Faccio, 33 AD3d 1041; People v Washington, 9 AD3d 499, 3 NY3d 682; People v Oliver, 19 AD3d 512, 5 NY3d 808; People v Reynolds, 283 AD2d 771, 96 NY2d 866.) VI. The Appellate Division erred in upholding admission of the letters appellant wrote to Latasha Joseph and/or to his brother, Kie Washington. VII. County Court was biased or gave the appearance of bias through its actions towards defense counsel. (People v Yut Wai Tom, 53 NY2d 44; People v Prado, 1 AD3d 533, 4 NY3d 725.) VIII. Prosecutorial errors deprived appellant of a fair trial. (Bruton v United States, 391 US 123; Crawford v Washington, 541 US 36; People v Crimmins, 36 NY2d 230.) IX. Appellant received ineffective assistance of counsel. (People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Rivera, 71 NY2d 705; People v Droz, 39 NY2d 457.)
   OPINION OF THE COURT

Pigott, J.

This appeal raises the question whether a defendant can open the door to the admission of testimony that would otherwise be inadmissible under the Confrontation Clause of the United States Constitution. We hold that he can, and, in this case, he did.

On June 8, 2001, a man was shot dead at the door of an Albany apartment where marijuana was being sold. Neighborhood residents saw two young men running away from the area. Four rifle casings were found at the murder scene—ammunition that is used in an AK-47 assault rifle. Four years later, in 2005, a friend with whom the victim had been watching television on the night of the murder identified Shahkene Joseph as a suspect, telling the police that Joseph had bought marijuana from the apartment shortly before the shooting. After further investigation, Joseph and defendant Lamarr Reid were arrested, and charged with murder in the second degree.

Joseph confessed to his involvement in the killing. He admitted that he and Reid had intended to rob residents of the apartment, that he saw the victim standing in the doorway, and that he and Reid fired their weapons through the door. In response to an omnibus motion by Reid, County Court severed Reid’s and Joseph’s trials, citing Bruton v United States (391 US 123 [1968]).

During Reid’s trial, the jury heard evidence concerning the events on the night of the killing—that Joseph visited the apartment before the killing, asking to buy marijuana; that Joseph and Reid gave a rifle or shotgun to a person who had once been in the same street gang as Reid; and that Reid told this person that he had “caught a jux” and “[c]aught a vie,” meaning that he had robbed someone. Two neighborhood residents testified that they had seen “two young men running with hooded sweat shirts” a block away from the crime scene.

The jury also heard that the day after the murder Reid told another acquaintance that “[h]e had caught a body” the previous night, i.e., that he had killed someone. Reid told this acquaintance that he had intended to carry out a robbery but met with resistance, that he had shot through the door or through the crack of the door, and that he had been with Shahkene Joseph and Charles McFarland. Reid said he had used a weapon he called the “Chopper,” which the jury learned was the name given to a particular AK-47 rifle used by Reid’s gang.

During cross-examination of this acquaintance, defense counsel had the witness confirm that McFarland himself had been present at this conversation. Defense counsel elicited that the witness had told the police about McFarland, and then asked him, “But you are aware that Charles McFarland has never been arrested for this, right? . . . Only Lamarr Reid and Shahkene Joseph, right?”—to which the witness assented.

Reid himself testified, and the defense also called a detective and a federal agent involved in the investigation. During direct examination of the detective, defense counsel asked questions designed to suggest that the investigation had been inadequate, a theme first outlined in counsel’s opening statement. On direct examination of the federal agent, defense counsel asked whether he had received information, during the course of his investigation, that McFarland was involved in the shooting. The agent agreed he had, and questioning followed concerning the source of that information, during which defense counsel suggested that there was more than one source.

On cross-examination of the agent, the prosecutor elicited that the information that McFarland had been present at the murder was from Reid’s acquaintance “saying what he had heard, not what he had seen or anything.” The prosecutor then said to the agent, “But in fact you also received eye witness testimony about who exactly was at the murder didn’t you?” The agent responded in the affirmative. The prosecutor then added, “And that eye witness testimony was that Charles McFarland certainly wasn’t there; isn’t that true?” Again, the agent assented.

Defense counsel objected, arguing that no eyewitness had testified to seeing the men who had carried out the shooting and that the jury would infer that Shahkene Joseph was the eyewitness who had told the police “who exactly was at the murder.” County Court overruled the objection, reasoning, inter alia, that defense counsel had “opened the door about McFarland being there.”

The prosecutor introduced letters that Reid had written from prison. Most pertinently, the letters alluded to Joseph, whom Reid was trying to contact. They also contained a reference to “catch[ing] bodies,” words similar to the expression Reid had been heard to use to describe the June 8, 2001 killing.

During summation, defense counsel returned to the theme that the police investigation had been inadequate and generated insufficient evidence. The jury was unpersuaded, finding Reid guilty of murder in the second degree (Penal Law § 125.25 [1]).

Reid filed a motion under CPL 330.30 seeking to set the verdict aside on several grounds, including the admission of testimony concerning an eyewitness to the crime who did not testify. County Court denied the motion, and Reid, duly convicted, was sentenced to imprisonment for 25 years to life.

Defendant appealed, raising a number of issues. The Appellate Division reversed County Court’s judgment and ordered a new trial, holding that Reid’s constitutional right to confront witnesses had been violated. “Because Joseph was unavailable and his pretrial statement to the police regarding who was present at the murder scene was testimonial, admission of that statement violated defendant’s right to confront his accusers” (82 AD3d 1495, 1497-1498 [3d Dept 2011], citing Crawford v Washington, 541 US 36, 53-54 [2004]; People v Rawlins, 10 NY3d 136, 147-148 [2008]). The Appellate Division rejected the People’s contention that defendant had opened the door to the prosecutor’s questions, and concluded that the error identified was not harmless (82 AD3d at 1498).

The Appellate Division also addressed some, but not all, of Reid’s remaining challenges to his conviction, ruling that “the introduction to the grand jury of some improper evidence did not require dismissal of the indictment” (id. at 1496), that Reid’s conviction was supported by legally sufficient evidence and not against the weight of the evidence (id. at 1496-1497), and that County Court properly admitted the letters written by Reid from prison (id. at 1497).

A Judge of this Court granted the People leave to appeal. We now reverse.

As the People concede, the admission of the testimony that a nontestifying eyewitness told the police who had been present at the murder violated the Confrontation Clause, unless the door was opened to that testimony by the defense counsel’s questioning of witnesses. The question then becomes whether a defendant can open the door to testimony that would otherwise violate his Confrontation Clause rights. Several United States Courts of Appeals have held that “a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause” (United States v Lopez-Medina, 596 F3d 716, 733 [10th Cir 2010]; see also e.g. United States v Holmes, 620 F3d 836, 843-844 [8th Cir 2010]; United States v Cruz-Diaz, 550 F3d 169, 178 [1st Cir 2008]; United States v Acosta, 475 F3d 677, 683-684 [5th Cir 2007]; but see United States v Cromer, 389 F3d 662, 679 [6th Cir 2004]). We agree with this consensus.

If evidence barred under the Confrontation Clause were inadmissible irrespective of a defendant’s actions at trial, then a defendant could attempt to delude a jury “by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context” (People v Ko, 15 AD3d 173, 174 [1st Dept 2005]). A defendant could do so with the secure knowledge that the concealed parts would not be admissible under the Confrontation Clause. To avoid such unfairness and to preserve the truth-seeking goals of our courts (see Tennessee v Street, 471 US 409, 415 [1985]), we hold that the admission of testimony that violates the Confrontation Clause may be proper if the defendant opened the door to its admission.

Today’s holding is consistent with our precedent that statements taken in violation of Miranda v Arizona (384 US 436 [1966]) are admissible if a defendant opens the door by presenting conflicting testimony. Just as “[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances” (Harris v New York, 401 US 222, 226 [1971]), so the Confrontation Clause cannot be used to prevent the introduction of testimony that would explain otherwise misleading out-of-court statements introduced by the defendant.

This does not complete our inquiry, however. Whether a defendant opened the door to particular, otherwise inadmissible evidence presented to the jury must be decided on a case-by-case basis. The inquiry is twofold—“whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression” (People v Massie, 2 NY3d 179, 184 [2004]).

Here, by eliciting from witnesses that the police had information that McFarland was involved in the shooting, by suggesting that more than one source indicated that McFarland was at the scene, and by persistently presenting the argument that the police investigation was incompetent, defendant opened the door to the admission of the testimonial evidence, from his nontestifying codefendant, that the police had information that McFarland was not at the shooting.

Moreover, we conclude that the specific, otherwise inadmissible evidence heard by the jury—that an eyewitness to the shooting, who knew exactly who was there, had told the police that McFarland was not present—was reasonably necessary to correct defense counsel’s misleading questioning and argument. There is justification for the view that the prosecutor could most effectively prevent the jury from reaching the false conclusion that McFarland had been present at the murder by eliciting that a person with immediate knowledge of the situation—an eyewitness who knew exactly who was at the murder— had told the police McFarland was not there. We conclude that County Court acted within its discretion in permitting the testimony.

Finally, we agree with the Appellate Division that the integrity of the grand jury was not impaired, that Reid’s letters were properly admitted, and that his conviction was supported by legally sufficient evidence. The Appellate Division should now consider the facts and issues raised by Reid that it declined to reach.

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

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

Order reversed, etc.

       The jury was also told that Reid and a friend had been walking past the site of the murder some two years later when Reid told the friend “to get off the sidewalk, have some respect for the dead.” Reid explained that he had tried to rob someone there and ended up shooting the man.


author: Jones, J. Pigott, J. (dissenting).

text:
    [971 NE2d 341, 948 NYS2d 211]
    The People of the State of New York, Respondent, v Derrick Gause, Appellant.
    Argued April 24, 2012;
    decided June 5, 2012

      POINTS OF COUNSEL

      Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), for appellant.
    I. Mr. Cause’s right to be free from double jeopardy guaranteed under the New York State and United States Constitutions and the Criminal Procedure Law, was violated by retrial of the intentional murder count. (People v Contes, 60 NY2d 620; Matter of Suarez v Byrne, 10 NY3d 523; Wade v Hunter, 336 US 684; Benton v Maryland, 395 US 784; People v Aguilera, 82 NY2d 23; People v Acevedo, 69 NY2d 478; People v Goodman, 69 NY2d 32; Ashe v Swenson, 397 US 436; Matter of Juan C. v Cortines, 89 NY2d 659; People v Plevy, 52 NY2d 58.) II. Since there had been a prior determination by the first juries that Mr. Cause acted with a different mens rea than his codefendant, the doctrine of collateral estoppel barred reprosecution on a theory of accomplice liability. (People v Rossey, 89 NY2d 970; People v Hafeez, 100 NY2d 253.) III. Mr. Cause was denied his right to effective assistance of counsel at both trials below. (Strickland v Washington, 466 US 668; Hill v Lockhart, 474 US 52; Murray v Carrier, 477 US 478; United States v Cronic, 466 US 648; People v Ennis, 11 NY3d 403; People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Turner, 5 NY3d 476; People v Ortiz, 76 NY2d 652; People v Lane, 60 NY2d 748.) TV The conviction was not based on legally sufficient evidence that Mr. Cause acted with the intent to kill, or that his actions caused death. (People v Bleakley, 69 NY2d 490; People v Contes, 60 NY2d 620; People v Gonzalez, 1 NY3d 464; People v Payne, 3 NY3d 266; People v Patterson, 39 NY2d 288, 432 US 197; People v Wallace, 217 AD2d 918; People v Bracey, 41 NY2d 296; People v Cobb, 72 AD3d 1565; People v Geddes, 49 AD3d 1255, 10 NY3d 863; People v Massey, 61 AD3d 1433.) V Contrary to its conclusion, the intermediate appellate court was not barred from reconsideration of the double jeopardy issue based on law of the case. (Matter of Suarez v Byrne, 10 NY3d 523; Aridas v Caserta, 41 NY2d 1059; Faricelli v TSS Seedman’s, 94 NY2d 772; People v Willette, 73 AD3d 1278; People v Harrison, 85 NY2d 794.)

      Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), for respondent.
    I. Defendant’s retrial for intentional murder was not in violation of the principles of double jeopardy, collateral estoppel, or CPL 40.20. (Green v United States, 355 US 184; Matter of Suarez v Byrne, 10 NY3d 523; People v Jackson, 20 NY2d 440; People v Charles, 78 NY2d 1044; People v Biggs, 1 NY3d 225; People v Goodman, 69 NY2d 32; People v Lo Cicero, 14 NY2d 374; People v Acevedo, 69 NY2d 478; People v Hawkins, 11 NY3d 484; People v Gray, 86 NY2d 10.) II. The People were not precluded from arguing that defendant acted as an accomplice in the murder of Whitney Morris under the doctrine of collateral estoppel. (People v Goodman, 69 NY2d 32; Ashe v Swenson, 397 US 436; People v Berkowitz, 50 NY2d 333.) III. Defendant received effective assistance of counsel under both the New York and federal standard. (People v Schulz, 4 NY3d 521; Strickland v Washington, 466 US 668; People v Flores, 84 NY2d 184; People v Kroemer, 204 AD2d 1017; People v Baldi, 54 NY2d 137; People v Satterfield, 66 NY2d 796; Rosario v Ercole, 601 F3d 118; People v Turner, 5 NY3d 476; People v Rivera, 71 NY2d 705; People v Grayson, 266 AD2d 740.) IV Defendant’s conviction of intentional murder is supported by legally sufficient evidence. (People v Danielson, 9 NY3d 342; People v Sala, 95 NY2d 254; People v Dekle, 56 NY2d 835; People v Bracey, 41 NY2d 296.) V The Appellate Division, Fourth Department, properly held that it was bound by its prior decision in People v Gause (46 AD3d 1332 [2007]) under the law of the case doctrine. (People v Willette, 73 AD3d 1278; People v Riley, 22 AD3d 609; Matter of Suarez v Byrne, 10 NY3d 523.)
   OPINION OF THE COURT

Jones, J.

In this case, where the defendant’s conviction for depraved indifference murder was reversed on appeal, the issue before this Court is whether, in accord with the principles of double jeopardy, defendant was impliedly acquitted of intentional murder when the jury was instructed to consider intentional murder and depraved indifference murder in the alternative, but that it could return a verdict on only one of the offenses. Because the first jury had a full opportunity to return a verdict on both inconsistent charges, defendant was impliedly acquitted of the other count when the jury convicted defendant of the depraved indifference murder and his second trial for intentional murder twice placed defendant in jeopardy for the same offense.

On January 26, 2002, after a dispute with Whitney Morris at a 7-Eleven in the City of Rochester, defendant and Timothy Lundy followed Morris and his friends to a nearby residence. After a fight between the two groups was defused, defendant and Lundy left. They returned to the residence shortly thereafter, and Lundy shot Morris. Defendant struck the victim on his head with a metal pole as he lay on the ground. The victim died from his injuries.

Defendant was ultimately prosecuted twice for the victim’s death. The original indictment charged defendant with intentional murder in the second degree, depraved indifference murder in the second degree and intentional assault in the first degree. At the close of trial, the court instructed the jury as follows:

“the indictment contains two counts, both of which charge murder in the second degree. There are two separate charges based upon two separate subdivisions of the same statute; that is, two different theories of how the crime was committed. However, under the circumstances of this case, essentially because there is only one death, the defendant may only be convicted of one of the charges and not both. In your deliberations, you may consider the charges in any order you wish, thus you may start with either Count 1 or Count 2. However, regardless of which count you consider first, if you should find the defendant guilty of such, you will stop right there and you will not go on to consider the other count. Only if you should find the defendant not guilty of the first count or the second, if that’s what you start with, will you then go on to consider the other count.”

The court then defined intentional murder and depraved indifference murder. During deliberations, the jury requested, by jury notes, that the court “[rjepeat the two elements of the first charge (with intent) along with the following instructions for those elements” and whether either charge required defendant to have “swung the pipe” to be guilty. These notes prompted the court to reread the substantive jury charges. The jury subsequently convicted defendant of depraved indifference murder.

The Appellate Division reversed the judgment of conviction on the ground that the evidence was legally insufficient to support the conviction of depraved indifference murder, dismissed count two of the indictment and ordered a new trial on count one (46 AD3d 1332 [4th Dept 2007]). The court concluded that the “jury never considered the intentional murder count” and, as such, “agree[d] with the People that double jeopardy does not preclude a new trial on that count” (id. at 1333). It further directed that the certificate of conviction “be amended to reflect that the jury did not” acquit defendant of intentional murder (id.).

Defendant was retried and convicted, after a jury trial, of intentional murder in the second degree. The Appellate Division affirmed, holding that its “prior decision is the law of the case” (81 AD3d 1293, 1294 [4th Dept 2011]).

A Judge of this Court granted defendant leave to appeal (17 NY3d 795 [2011]). Defendant contends now, as he did below, that double jeopardy barred the retrial of the intentional murder charge even though the jury verdict had not specifically indicated an acquittal on that count. We agree. Because the first jury had before it counts of depraved indifference murder and intentional murder—inconsistent counts—and it reached a guilty verdict on one, that determination necessarily acquitted defendant of the other crime and, therefore, double jeopardy barred the People from reprosecuting defendant for it.

“No person shall be subject to be twice put in jeopardy for the same offense” (NY Const, art I, § 6; see also US Const 5th Amend). The Double Jeopardy Clauses of our State and Federal Constitutions specifically guard against a defendant twice being tried for the same offense (see Matter of Suarez v Byrne, 10 NY3d 523, 531 [2008]; People v Ferguson, 67 NY2d 383, 387 [1986]). At its core, double jeopardy precludes “the government from prosecuting a [defendant] for the same offense after an acquittal or a conviction;[] or from imposing multiple punishments for the same offense in successive proceedings” (Matter of Suarez, 10 NY3d at 532).

The United States Supreme Court has long recognized that, there are cases in which “[i]f a conviction might have been had, and was not, there was an implied acquittal” (In re Nielsen, 131 US 176, 190 [1889]). In Matter of Suarez, we remarked that “[t]he implied acquittal bar to reprosecution presupposes that the first jury ‘was given a full opportunity to return a verdict’ on the particular charge that the prosecutor seeks to advance in the second trial” (10 NY3d at 532 [citations omitted]).

Here, the first jury was given a full opportunity to return a verdict on the intentional murder charge and it impliedly did so when it convicted defendant of depraved indifference murder. Depraved indifference murder and intentional murder in the second degree are inconsistent counts, as “guilt of one necessarily negates guilt of the other” (People v Gallagher, 69 NY2d 525, 529 [1987]; see CPL 300.30 [5]). When these two charges are submitted to the jury in the alternative, a guilty verdict upon one necessarily requires an acquittal upon the other and a jury should be so instructed {see CPL 300.40 [5]). As the trial court instructed, before the jury were two counts, “two different theories of how the crime was committed,” but it could only convict the defendant of one of the counts. The jury concluded that defendant acted recklessly in the murder of the victim, rather than intentionally. The jury, which sought instruction on both charges, necessarily rejected the theory that defendant intentionally murdered the victim when it convicted defendant of depraved indifference murder. As such, the jury impliedly acquitted defendant of intentional murder. Thus, defendant’s subsequent retrial on the intentional murder charge, after the reversal of his depraved indifference murder conviction, is prohibited under double jeopardy.

In sum, defendant should not have been prosecuted twice for intentional murder in the second degree. Because no charges from the original indictment remain unconsidered, and no lesser included offenses were submitted to the juiy, we are constrained, pursuant to the principles of double jeopardy, to reverse the conviction and dismiss the indictment (see People v Taylor, 15 NY3d 518 [2010]; Matter of Suarez, 10 NY3d at 541; People v Biggs, 1 NY3d 225 [2003]).

Accordingly, the Appellate Division order should be reversed and the indictment dismissed.

Pigott, J. (dissenting).

Because in my view the jury at the first trial was not afforded “a full opportunity to return a verdict” on the count of intentional murder (Matter of Suarez v Byrne, 10 NY3d 523, 532 [2008]), defendant’s subsequent trial on that count did not violate double jeopardy and his conviction for that offense should stand.

At the first trial, the court charged the jury, without objection, that

“you may consider the charges in any order you wish, thus you may start with either Count 1 [intentional murder] or Count 2 [depraved indifference murder]. However, regardless of which count you consider first, if you should find the defendant guilty of such, you will stop right there and you will not go on to consider the other count. Only if you should find the defendant not guilty of the first count or the second, if that’s what you start with, will you then go on to consider the other count. Of course, you may find the defendant not guilty of both counts” (emphasis supplied).

Before the jury read its verdict, the court asked the foreperson which count the jury considered first, and he responded, “Count 2.” The jury found defendant guilty of depraved indifference murder. The Appellate Division reversed defendant’s conviction in the interest of justice so that this defendant could be retried on the intentional murder count.

The majority assumes, based on the fact that the jury sought instruction on both charges, that the jury considered the intentional murder count during its deliberations. But it is well-settled law that “Q]urors are presumed to follow the legal instructions they are given” (People v Baker, 14 NY3d 266, 274 [2010]), and, here, the foreperson apprised the court that the jury considered the depraved indifference murder count first. For all we know, the jury asked for a recharge on both counts so it could determine which count it should consider first. The majority’s conclusion that the jury must have considered the intentional murder count, thereby “impliedly” acquitting defendant of that charge by finding him guilty of depraved indifference murder, is purely speculative.

In Blueford v Arkansas (566 US —, 132 S Ct 2044 [2012]), the foreperson informally apprised the court that the jury had unanimously concluded the defendant was not guilty of the top two murder counts and split on the third count but did not reach the fourth. The jury thereafter resumed deliberations for a half hour and the court declared a mistrial when the foreperson told the court that the jury could not reach a verdict. The United States Supreme Court held that double jeopardy did not bar the defendant’s retrial on the top two counts because “[t]he foreperson’s [initial] report was not a final resolution of anything” because when she apprised the court as to how the jury voted “the jury’s deliberations had not yet [been] concluded” (566 US at —, 132 S Ct at 2050). The continuation of the jury deliberations after the initial report “deprive[d it] of the finality necessary to constitute an acquittal on the murder offenses” (id.).

Unlike the jury in Blueford, however, the first jury here undeniably considered only one count—depraved indifference murder—and found the defendant guilty on that count. If, as per Blueford, a jury is able to consider a number of counts and reach a tentative verdict of not guilty as to the top counts, and double jeopardy does not bar a retrial on those counts, I fail to see how the doctrine of “implied acquittal” can prevent defendant’s trial on the unconsidered count of intentional murder, particularly in light of the court’s charge and the presumption that the jury followed it.

In my view, our holding in People v Jackson (20 NY2d 440 [1967], cert denied 391 US 928 [1968]) is controlling. There, the People presented evidence as to premeditated and deliberate murder (former Penal Law § 1044 [1]) and felony murder (former Penal Law § 1044 [2]), and the jury convicted the defendant of the former count, with said conviction being vacated on appeal and remanded for a new trial. At retrial, over the defendant’s objection on double jeopardy grounds, the court allowed the People to admit evidence relative to the felony murder count, and the jury found him guilty of that count. On appeal, this Court held that the first jury’s silence relative to the felony murder count did not have “the effect of acquitting [the defendant] on that theory” since such silence would have only had that effect if the jury “were given a full opportunity to consider the felony murder theory” (id. at 452). And because the court instructed the jury, without exception, to “render only one of the [two] verdicts” and to “render one verdict; one or the other, not both,” there was no reason for it “to consider the felony murder charge once it found the defendant guilty of premeditated murder” (id.). We acknowledged that because the trial court instructed the jury that it was free to choose whichever theory to consider first it was certainly “possible that the jury considered felony murder first and acquitted him of that theory but under the single verdict charge [,] the jury was not able to express an acquittal, and to say that the defendant was so acquitted would be to engage in mere speculation” (id.).

So, too, in this case. The first jury was given the choice of deciding which count to address first, and it considered the depraved indifference murder count, never reaching the intentional murder count. To presume that the jury reached the intentional murder count is not only speculative, but runs counter to our well-settled precedent that the jury is presumed to have followed the trial court’s instructions. Thus, in my view, the first jury could not be said to have “impliedly” acquitted defendant of intentional murder, and therefore I would affirm the order of the Appellate Division.

In sum, we have a defendant twice convicted of a homicide he undoubtedly committed and twice having his conviction overturned, on grounds that can only be described as technical. If law enforcement is puzzled as to what to do next, we shouldn’t be surprised.

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

Order reversed, etc.

      . The intentional assault charge was dismissed, on motion of the prosecutor, prior to trial.

      . Lundy was also charged with intentional murder and depraved indifference murder. However, a different jury convicted him of intentional murder. That conviction was affirmed (48 AD3d 1046 [4th Dept 2008]).

      . The dissent’s reliance upon Blueford v Arkansas (566 US —, 132 S Ct 2044 [2012]) is misguided as the first of two trials concluded in a mistrial. In that case, the first jury deliberated on four charges. The trial court instructed it either to convict the defendant of one of the charges or acquit him of all of them. The jury could not reach a verdict. After the court inquired about the jury’s progress, the foreperson disclosed that the jury had unanimously agreed to acquit defendant of the top two counts, but still needed to resolve the remaining charges. The trial ended in a mistrial, however, as the jury had never reached a verdict. The defendant argued that double jeopardy barred his reprosecution on the top two charges. The United States Supreme Court rejected the defendant’s argument, observing that the “foreperson’s report was not a final resolution of anything” (566 US at —•, 132 S Ct at 2050). The Court explained,

        (n. cont’d)

        “[t]he jury in this case did not convict [the defendant] of any offense, but it did not acquit him of any either. When the jury was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury. As a consequence, the Double Jeopardy Clause does not stand in the way of a second trial on the same offenses” (566 US at — ,132 S Ct at 2053).

      . A court may submit to a jury two inconsistent counts in the alternative, if the counts can be supported by legally sufficient evidence, but “must direct the jury that if it renders a verdict of guilty upon one such count it must render a verdict of not guilty upon the other” (CPL 300.40 [5]). Had the jury been instructed under section 300.40 (5), there would be no issue concerning implied acquittal because the jury would have found defendant not guilty of intentional murder. The court’s oversight in failing to give the instruction did not change the underlying principle that conviction of one count entails acquittal of the other.

      . This case is wholly distinguishable from People v Jackson (20 NY2d 440 [1967]), where the Court rejected the application of implied acquittal to the circumstances of that case. There, the defendant was convicted of common-law murder in the first degree, but the jury was silent as to felony murder. After his judgment of conviction was reversed based upon the voluntariness of his confession, a new trial was ordered, and the defendant was retried on the original indictment. After the second trial, the jury convicted the defendant of felony murder. The Jackson Court concluded that the “defendant was not twice put in jeopardy . . . [for] felony murder” (id. at 453). It rejected the application of implied acquittal in that case because the jury had not necessarily considered the felony murder charge. That case is consistent with this holding as it did not involve inconsistent counts where, statutorily and logically, “guilt of one necessarily negates guilt of the other” (Gallagher, 69 NY2d at 529; see also CPL 300.30 [5]).


author: Chief Judge Lippman.

text:
    [971 NE2d 363, 948 NYS2d 233]
    The People of the State of New York, Respondent, v David Plunkett, Appellant.
    Argued April 26, 2012;
    decided June 7, 2012

      POINTS OF COUNSEL

      Audrey Baron Dunning, Ilion, for appellant.
    I. A plea bargain that specifically includes a defendant’s right to appeal rulings of the trial court should be recognized and upheld. (People v Green, 75 NY2d 902; People v Taylor, 65 NY2d 1; People v Prescott, 66 NY2d 216.) II. A defendant with mental disabilities should be allowed to question prospective jurors to determine if they hold any unfavorable opinions or views toward people with mental disabilities. III. The lower court erred in categorizing teeth as a dangerous instrument under Penal Law § 10.00 (13). (People v Owusu, 93 NY2d 398.) IV Saliva is not a dangerous instrument as defined under New York criminal law. (People v Vollmer, 299 NY 347; People v Owusu, 93 NY2d 398.) V The court erred in not dismissing the indictment upon the People’s failure to present potentially exculpatory material to the grand jury and the lack of proper police investigation of all relevant and available witnesses involved, including eyewitnesses. (People v Valles, 62 NY2d 36; People v Calbud, Inc., 49 NY2d 389; People v Johnson, 277 AD2d 702; People v Lancaster, 69 NY2d 20; People v De Martino, 71 AD2d 477; People v McAdoo, 45 Misc 2d 664; People v Talham, 41 AD2d 354.)

      John H. Crandall, District Attorney, Herkimer (Jeffrey S. Carpenter of counsel), for respondent.
    I. Appellant waived any challenge to the factual finding of guilt by entering a guilty plea, and appellant failed to sufficiently reserve his right to appeal on the record. (People v Pelchat, 62 NY2d 97; People v Thomas, 74 AD2d 317; People v Taylor, 65 NY2d 1; People v Levin, 57 NY2d 1008; People v Charleston, 54 NY2d 622; People v Kinchen, 60 NY2d 772; People v Davilla, 249 AD2d 179; People v Green, 75 NY2d 902; People v Di Raffaele, 55 NY2d 234; People v Lynn, 28 NY2d 196.) II. The lower court did not err by refusing to allow questions concerning prospective jurors’ views towards persons with mental disabilities. (People v Corbett, 68 AD2d 772; People v Torres, 268 AD2d 312; People v Green, 75 NY2d 902.) III. The lower court did not categorize teeth as a dangerous instrument. (People v Owusu, 93 NY2d 398; People v Carter, 53 NY2d 113.) IV The lower court properly considered saliva a dangerous instrument pursuant to Penal Law § 10.00 (13). (People v Carter, 53 NY2d 113; People v Owusu, 93 NY2d 398; People v Azor, 177 Misc 2d 427; Tischler v Dimenna, 160 Misc 2d 525; People v Anonymous, 153 Misc 2d 436.) V The lower court did not err in refusing to dismiss the indictment after review of the grand jury minutes. (People v Jennings, 69 NY2d 103; People v Deegan, 69 NY2d 976; People v Lancaster, 69 NY2d 20; People v Isla, 96 AD2d 789; People v Valles, 62 NY2d 36; People v Erber, 210 AD2d 250; People v Ferrara, 99 AD2d 257; People v Crumpler, 70 AD3d 1396.)

      Lambda Legal Defense and Education Fund, Inc., New York City (Hayley J. Gorenberg of counsel), and Lambda Legal Defense and Education Fund, Inc., Chicago, Illinois (Scott A. Schoettes of counsel), for American Academy of HIV Medicine and others, amici curiae.
    The lower court erred in ruling that the “dangerous instrument” element was satisfied in this case. (People v Watson, 32 AD3d 1199; People v Woodruff, 4 AD3d 770; Brown v New York City Health & Hosps. Corp., 225 AD2d 36; People v Owusu, 93 NY2d 398; People v Carter, 53 NY2d 113; People v Byrd, 51 AD3d 267; Matter of Holloway v Travis, 289 AD2d 821; Matter of Andre D., 182 AD2d 1108; People v Travis, 273 AD2d 544; Hitchcock Plaza v Clark, 1 Misc 3d 906[A], 2003 NY Slip Op 51524[U].)
   OPINION OF THE COURT

Chief Judge Lippman.

Defendant challenges his conviction for aggravated assault upon a police officer or a peace officer (Penal Law § 120.11), an element of which is the assailant’s use of a deadly weapon or dangerous instrument. He was charged with that offense by a Herkimer County grand jury based on evidence that he bit a police officer on the finger as the officer attempted to arrest him. Defendant is HIV positive and has a long history of psychiatric illness. His arrest was precipitated by his bizarre behavior and open possession of marijuana in the reception area of his primary physician’s office.

Although the indictment, in its top count, does little more than track the language of Penal Law § 120.11, the People in their bill of particulars specified that the dangerous instruments) to which the indictment referred were defendant’s teeth. However, in a prior biting case, People v Owusu (93 NY2d 398 [1999]), this Court had held that an assailant’s teeth could not be deemed “instruments” within the definition of the Penal Law; indeed, Owusu held categorically that “an individual’s body part does not constitute an instrument” and may not, even if used dangerously to produce injury, be a “dangerous instrument” within the meaning of Penal Law § 10.00 (13) (id. at 399). Following her receipt of the People’s bill of particulars, then, defendant’s attorney moved by letter application to append to her client’s previously denied omnibus motion an application based upon Owusu. She included with her letter a copy of that decision, noting her view that it bore directly upon the viability of the indictment’s first count. She said, “this case speaks to the issue of teeth as a potentially deadly weapon or dangerous instrument. This case held that ‘human body parts such as appellant’s teeth could not constitute a dangerous weapon . . . ” Counsel requested on this purely legal ground the first count’s dismissal.

County Court, recognizing that this was not a routine omnibus application, responded to it both orally and in a separate written decision. Implicitly acknowledging that a prosecution premised on the use of teeth as dangerous instruments was not viable after Owusu, the court expressed the view' that the aggravated assault count could be sustained instead on the theory that the dangerous instrument to which the count referred was defendant’s saliva. Defendant’s saliva “infected with the AIDS virus,” the court believed, was a substance “readily capable of causing death or other serious physical injury” and, as such, qualified as a dangerous instrument for purposes of the aggravated assault statute. Defendant’s teeth, the court explained, were only the means for injecting the dangerous substance into the victim’s body.

Just before the trial’s scheduled commencement, County Court announced that based on “continuing discussions” an agreement had been reached that defendant would plead guilty to the indictment’s top three counts. After advising defendant of the rights he would be waiving by entering the contemplated plea, and of the bargained for sentence, the court separately noted:

“Based upon discussions, you would not be waiving your right to appeal, and you would have your right to appeal, which is one of the things that you had requested as part of your plea. And the Court, based upon certain circumstances that have come up in rulings that I have made, that, in fact, you would have your right to appeal continue” (emphasis supplied).

It is clear that County Court was here referring specifically to its ruling that defendant’s saliva could qualify under the Penal Law as a dangerous instrument. The court understood the ruling to be pivotal to the prosecution, and the record discloses no other issue whose reservation could conceivably have been instrumental in inducing defendant’s plea to the indictment’s top three counts. Defendant’s counsel, moreover, plainly believed that her client possessed a meritorious claim completely decisive of the indictment’s most serious charge. Her insistence upon the reservation of that claim, then, would have been a representational imperative.

Defendant’s reservation of appellate rights did not, however, avail him at the Appellate Division, where the judgment convicting him was affirmed on the ground that his appellate claims had been forfeited by his plea (77 AD3d 1442 [2010]). A Judge of this Court granted defendant permission to appeal (16 NY3d 835 [2011]), and we now modify to vacate defendant’s conviction for aggravated assault and to dismiss the corresponding count of the indictment.

A guilty plea, we have observed, “generally marks the end of a criminal case, not a gateway to further litigation” (People v Hansen, 95 NY2d 227, 230 [2000]). Consistently, we have deemed appellate claims challenging what is competently and independently established by a plea forfeited (see id.), even where the plea was induced and entered upon an assurance that such claims would survive. In People v Thomas (53 NY2d 338, 340 [1981]) we held that

“[t]he legal sufficiency of a conceded set of facts to support a judgment of conviction entered upon a guilty plea may not be saved for appellate review by conditioning the plea on defendant’s right to appeal that issue, even though the prosecutor consents to, and the Trial Judge approves, the entry of such a conditional plea.”

We explained that it would be logically inconsistent to permit a defendant to enter a plea of guilty based on particular admitted facts, yet to allow that defendant contemporaneously to reserve the right to challenge on appeal the sufficiency of those facts to support a conviction, had there been a trial (see id. at 344). The “solemn act” of entering a plea, itself sufficing as a conviction, we said, should not be permitted to be used as a device for a defendant to avoid a trial while maintaining a claim of factual innocence (see id. at 344-345).

By the same token, however, where an appellate claim does not challenge what is legitimately established by a plea or where it has been deemed inconsistent with public policy to submerge an appellate claim within a plea, we have recognized that the forfeiture doctrine should not apply. As we noted in People v Lee (58 NY2d 491 [1983])—where we held appellate claims as to the constitutionality of a penal statute not encompassed by the plea forfeiture doctrine—Thomas’s application of the doctrine was expressly limited to situations in which the issue proposed for appellate review was the sufficiency of the facts admitted in connection with the plea to support the conviction (see Lee, 58 NY2d at 494 n, citing Thomas, 53 NY2d at 344); Thomas was in no way inconsistent with the limiting principle recognized in Lee, that where an appellate claim is not inconsistent with what is properly established by the plea, it is not forfeited (see id. at 493-494; see also People v Taylor, 65 NY2d 1, 5 [1985] [“since a plea usually removes the issue of factual guilt from a case, resolution of the question (of what is forfeited by the plea) may be guided by determining whether the claim relates to the factual elements of the crime charged, or to some other, fundamental matter”]). Of course, that principle was not novel in Lee (see e.g., Menna v New York, 423 US 61, 63 n 2 [1975] [“A guilty plea . . . simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established”]).

If the question reserved for appeal in this case were whether there was evidence to make out the crime of aggravated assault, the reservation would, under Thomas, be ineffective; the undisturbed plea would operate to forfeit the appellate claim. Somewhat paradoxically, however, such a plea, although effective to the extent of the forfeiture, would be subject to vacatur by reason of having been induced by a promise of appellate review the performance of which Thomas forbids (see 53 NY2d at 344; and see People v Di Raffaele, 55 NY2d 234, 241 [1982]). In the event we find his Owusu based challenge to his conviction forfeited by his plea, defendant has asked for, and would be entitled to have, his plea back. Defendant’s Owusu claim would then be litigated in the context of the reinstituted prosecution through a trial and any ensuing appeals—hardly a victory for the principle that a plea should function as a bulwark against further litigation.

We do not believe that the interposition of so many steps should be required to resolve the particular very basic, purely legal question defendant has raised, namely, whether he has been charged with and has pleaded to a cognizable offense, where the accusatory instrument, as refined by the People’s bill of particulars and the trial court’s ruling, alleges the commission of aggravated assault by use of part of the defendant’s person as a dangerous instrument. The address of that question depends not at all on the particular evidence supporting the accusation, nor is it logically precluded by defendant’s admissions in his plea to the extent that those admissions are understood as responsive to the charge framed by County Court’s ruling. This is because the relevant claim is that there is no set of facts that could be proved, or to which a defendant could plead, that would establish guilt of aggravated assault upon the theory alleged. A plea of course has extraordinary utility; it is uniquely capable of establishing inculpatory facts, even when those facts have not otherwise been satisfactorily adduced. It is, however, not a competent proxy for a legally (as opposed to a factually) viable theory of prosecution. A defendant can admit facts, but cannot by his or her admission mint an offense for which the law does not already provide.

In the present unusual circumstance, where the claim defendant would raise is essentially that he was never charged, under the indictment’s top count, with an extant crime, the rationale for the forfeiture doctrine—namely, that what the defendant would challenge has been conclusively and independently established by his or her plea—is not applicable to bar review. To so hold does not impair the legitimate utility of pleas in concluding litigation. And, we signal no departure from the rule that, ordinarily, guilty pleas operate to forfeit appellate claims respecting nonjurisdictional defects in the underlying proceedings (see People v Konieczny, 2 NY3d 569, 572 [2004]). We simply recognize, as we have in numerous other contexts (see Hansen, 95 NY2d at 230-231), that pleas are not properly interposed to preclude appellate review of issues that they are not competent to, or for reasons of public policy should not, conclude.

Inasmuch as defendant’s plea does not operate to forfeit his challenge to the indictment’s top count, we turn to the substance of his claim. Although County Court was of the view that defendant’s saliva could be a “dangerous instrument” within the meaning of Penal Law § 10.00 (13) because it is a “substance,” we began our analysis in Owusu by recognizing that “a part of one’s body is not encompassed by the terms ‘article’ or ‘substance’ as used in the statute” (93 NY2d at 400-401). From that basic and, we thought, uncontroversial premise, we continued, to address the question of whether a body part, although not a “substance” or an “article,” might nonetheless be deemed an “instrument” under the statute. In concluding that an individual’s body part could not be so deemed and, thus, that body parts, even if otherwise corresponding to the terms “substance,” “article” or “instrument,” categorically could not qualify as “dangerous instruments” within the meaning of Penal Law § 10.00 (13), we sought not simply to reach a textually and historically correct understanding of what the Legislature meant to encompass (and to exclude), but to avoid the anomalies that would result if criminal liability varied with the corporeal attributes of assailants and their victims. We explained that the inclusion of body parts within the universe of potential “dangerous instruments” would, under Penal Law § 10.00 (13), render “the size of the perpetrator, his weight, strength, etc., as well as any infirmities or frailties of the victim . . . relevant in understanding one’s ability to cause serious physical injury or death. A sliding scale of criminal liability (the extraordinary man anomaly) would be the result” (Owusu, 93 NY2d at 404). To avoid such an anomaly, our jurisprudence, we observed, had “drawn the line at a reasonable interpretation of the term ‘instrument’ and ha[d] not included within it a person’s hands or other body parts” (id.). “Owusu’s teeth came with him” and thus could not themselves qualify as a predicate to heighten his criminal liability beyond that justified by his victim’s injury (id. at 405). Because defendant’s saliva too “came with him”— indeed, with his teeth—its utility for penal enhancement may not be treated differently.

It is important to stress that the limitation we recognized in Owusu and which we now reaffirm does nothing to diminish the State’s power to punish a defendant according to the harm actually inflicted (see id. at 405). All that is limited is its power to heighten liability solely by reason of corporeal attributes.

Accordingly, the order of the Appellate Division should be modified by dismissing the count of the indictment charging aggravated assault upon a police officer or peace officer, and remitting to Herkimer County Court for resentencing and, as so modified, affirmed.

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

Order modified, etc.

      . The statute provides in its entirety:

        “A person is guilty of aggravated assault upon a police officer or a peace officer when, with intent to cause serious physical injury to a person whom he knows or reasonably should know to be a police officer or a peace officer engaged in the course of performing his official duties, he causes such injury by means of a deadly weapon or dangerous instrument.”

      . In connection with the doctor’s office incident, defendant was also charged with two counts of assault in the second degree, resisting arrest and criminal possession of marijuana in the fifth degree.

      . Whether saliva containing the HIV virus is in fact “readily capable of causing death or other serious physical injury” is an issue that we do not reach. For the reasons that follow, neither should it have been reached by County Court.

      . As the court explained to the jury shortly after taking defendant’s plea: “the question was whether—there’s some very technical legal questions that have been batted around in this case as to what would involve a dangerous instrument, which is something you would have had to have made a decision on. And I had made a ruling that you were going to hear it based on the fact that one of the definitions of dangerous instrument is a term called ‘substance, ’ and that his saliva was, in fact, a substance that could have caused death; and that when he bit the officers, he was only using his teeth to inject a substance into their body” (emphasis supplied).

      . The statute provides: “ ‘Dangerous instrument’ means any instrument, article or substance, including a ‘vehicle’ as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.”


text:
    [971 NE2d 852, 948 NYS2d 571]
    Chazon, LLC, Respondent, v Margaret Maugenest, Appellant, et al., Defendants.
    Argued May 1, 2012;
    decided June 7, 2012

      POINTS OF COUNSEL

      Goodfarb & Sandercock, LLP, New York City (Margaret B. Sandercock of counsel), for appellant.
    I. A Loft Law landlord can only collect rent when in compliance with Multiple Dwelling Law § 284. II. A Loft Law landlord who is not in compliance with section 284 is barred by Multiple Dwelling Law § 285 (1) from bringing an action in ejectment due to nonpayment of rent. (99 Commercial St. v Llewellyn, 240 AD2d 481; County Dollar Corp. v Douglas, 160 AD2d 537; 902 Assoc. v Total Picture Creative Servs., 144 Misc 2d 316.) III. A Loft Law tenant whose landlord does not meet statutory fire and safety standards should be permitted to withhold rent as a means of encouraging the landlord to meet its obligations. (Matter of Bikman v New York City Loft Bd., 14 NY3d 377; Caldwell v American Package Co., Inc., 57 AD3d 15.) IV The courts below erred in failing to address appellant’s ability to pay rent and cure her alleged default. (Iltit Assoc. v Sterner, 63 AD2d 600; Young v Lucas, 1 AD2d 754; Clark v Williams, 149 Misc 2d 945; County Dollar Corp. v Douglas, 160 AD2d 537; 99 Commercial St. v

      Llewellyn, 240 AD2d 481; Baer v Gotham Craftsman, 154 Misc 2d 490; Park W. Mgt. Corp. v Mitchell, 47 NY2d 316.)

      Tenenbaum Berger & Shivers LLP, Brooklyn (David M. Berger of counsel), for respondent.
    I. A tenant may not both abstain from paying rent and demand continued occupancy. The statute never abrogated the common-law right to recover possession. (Goho Equities v Weiss, 149 Misc 2d 628; Wokal v Sequin, 167 Misc 463; Caldwell v American Package Co., Inc., 57 AD3d 15; 99 Commercial St. v Llewellyn, 240 AD2d 481; Jordan Mfg. Corp. v Zimmerman, 169 AD2d 815; Le Sannom Bldg. Corp. v Lassen, 173 AD2d 249; Carnegie Hall, Inc. v Zysman, 238 App Div 515; J.Z. & A.E. Realty Corp. v Putnam, 258 AD2d 442; Dulac v Dabrowski, 4 AD3d 308; 1018 Dev. Co. v Howard, 1 Misc 3d 128[A], 2003 NY Slip Op 51567[U].) II. There is no split between the First and Second Departments. (County Dollar Corp. v Douglas, 160 AD2d 537; 902 Assoc. v Total Picture Creative Servs., 144 Misc 2d 316; Le Sannom Bldg. Corp. v Lassen, 173 AD2d 249; Cromwell v Le Sannom Bldg. Corp., 171 AD2d 458.) III. There is no right to an offset under the warranty of habitability. (Cromwell v Le Sannom Bldg. Corp., 171 AD2d 458.)

      Robert Petrucci, New York City, for Lower Manhattan Loft Tenants, amicus curiae.
    I. The court below erred in allowing Chazon, LLC to maintain an action for possession based on nonpayment of rent. (Caldwell v American Package Co., Inc., 57 AD3d 15; B.S.L. One Owners Corp. v Rubenstein, 159 Misc 2d 903; BFN Realty Assoc. v Cora, 8 Misc 3d 139[A], 2005 NY Slip Op 51338[U]; 40 Clinton St. Assoc. v Dolgin, 126 Misc 2d 373; 468-470 Ninth Ave. Corp. v Randall, 199 AD2d 13; Hornfeld v Gaare, 130 AD2d 398; 99 Commercial St. v Llewellyn, 240 AD2d 481; Jo-Fra Props., Inc. v Bobbe, 81 AD3d 29, 17 NY3d 933; 640 Broadway Renaissance Co. v Eisner, 212 AD2d 376; County Dollar Corp. v Douglas, 161 AD2d 370.) II. The Second Department is unique in its incorrect holding that a noncompliant landlord of an interim multiple dwelling can eject a Loft-Law-protected tenant for nonpayment of rent. (Jo-Fra Props., Inc. v Bobbe, 81 AD3d 29; Le Sannom Bldg. Corp. v Lassen, 173 AD2d 249; Cromwell v Le Sannom Bldg. Corp., 171 AD2d 458, 222 AD2d 307; 99 Commercial St. v Llewellyn, 240 AD2d 481; Nestor v McDowell, 81 NY2d 410; Killington Invs. v Leino, 148 AD2d 334.)
   OPINION OF THE COURT

Smith, J.

We hold that the landlord of a New York City loft who has not complied with the Loft Law and has not received an extension of time to comply may not maintain an ejectment action based on nonpayment of rent.

Plaintiff is the owner of a loft building in Brooklyn. Defendant-appellant occupies an apartment in that building, for which she has paid no rent since 2003. Plaintiff brought this action in ejectment; Supreme Court granted summary judgment awarding plaintiff possession of the apartment, and the Appellate Division affirmed (81 AD3d 769 [2011]). We granted permission to appeal (17 NY3d 705 [2011]), and now reverse. We conclude that, under the present circumstances, the landlord is not entitled either to collect rent or to evict the tenant. To explain why, we must summarize the historical background and the content of the relevant statutes.

The apartments commonly referred to as “lofts” are in buildings formerly used for commercial purposes—often former factories—that have been rented to residential tenants. Because the buildings do not have a residential certificate of occupancy, this use of the property is contrary to Multiple Dwelling Law § 301 (1), which says that, with exceptions not relevant here, “[n]o multiple dwelling shall be occupied in whole or in part until the issuance” of such a certificate. Section 302 (1) of the Multiple Dwelling Law says:

“a. If any dwelling or structure be occupied in whole or in part for human habitation in violation of section three hundred one, during such unlawful occupation . . .
“b. No rent shall be recovered by the owner of such premises for said period, and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent.”

Until the Legislature enacted the Loft Law (Multiple Dwelling Law art 7-C) in 1982 (L 1982, ch 349), the residential occupancy of lofts was illegal pure and simple: The tenants had no right to be there, and the landlords had no right to collect rent. Such illegal occupancies were common in New York City, and the Legislature enacted the Loft Law as a means of bringing them within the law.

The Loft Law defines the term “interim multiple dwelling” to mean, essentially, any of these illegally occupied buildings (Multiple Dwelling Law § 281). It establishes a series of deadlines by which the owners of interim multiple dwellings are required to alter them to conform to safety and fire protection standards, ultimately doing everything necessary to obtain a residential certificate of occupancy (Multiple Dwelling Law § 284 [1]). A landlord unable to meet the deadlines “for reasons beyond his/her control” is entitled to an extension of time if that landlord demonstrates to the Loft Board (an agency established by Multiple Dwelling Law § 282) that he or she “has made good faith efforts” to comply (Multiple Dwelling Law § 284 [1] [vii]). Until the certificate of occupancy is obtained, the rents in interim multiple dwellings are regulated, and the tenants are protected against eviction (Multiple Dwelling Law § 286), while the landlords, as long as they are in compliance with the Loft Law, are relieved from the prohibition against collecting rent or seeking eviction for nonpayment. Section 285 (1) of the Multiple Dwelling Law says: “Notwithstanding the provisions of section three hundred two ... of this chapter, the owner of an interim multiple dwelling may recover rent payable . . . and maintain an action or proceeding for possession of such premises for nonpayment of rent, provided that he is in compliance with this article.”

As an effort to bring loft buildings into compliance with the law, the Loft Law has been less than a complete success. The deadlines for compliance have been extended several times (see Multiple Dwelling Law § 284 [1] [ii]-[v]). In 1983, there were 914 buildings under the Loft Board’s jurisdiction (Lebovits and Rzesniowiecki, The New York Loft Law, 38 NY Real Prop LJ [No. 2] 21, 28 n 28 [spring 2010]). By 1989, when the law had been in effect seven years, Justice Ostrau of the Appellate Term, dissenting in 902 Assoc. v Total Picture Creative Servs. (144 Misc 2d 316, 320 [App Term, 1st Dept 1989]), said that “[v]ery few interim multiple dwellings in this city have been legalized.” Even now, when the law has been in effect for 30 years, there are, according to the Loft Board’s Web site, 304 buildings— almost one-third of the 1983 total—that remain as “interim multiple dwellings” (http://www.nyc.gov/html/loft/html/ buildings/buildings.shtml [last visited May 30, 2012]). The reason for the slow pace of legalization is not clear—predictably, tenants blame landlords, while landlords blame tenants and the Loft Board—but it appears to present a significant practical problem.

The problem is illustrated by this case, in which the landlord remains out of compliance with the Loft Law and the tenant has paid no rent for nine years. The landlord has neither met the Loft Law deadlines nor obtained an extension of time from the Loft Board. (Indeed, in 2006 the Loft Board specifically rejected the landlord’s claim that compliance was hindered by circumstances beyond its control.) In the absence of compliance, the law’s command is quite clear: “No rent shall be recovered by the owner of such premises . . . and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent.” Those are the words of Multiple Dwelling Law § 302 (1) (b), and Multiple Dwelling Law § 285 (1) makes an exception only for a landlord who is “in compliance with” the Loft Law. In other words, the statutes leave these parties in their present stalemate until compliance has been achieved.

Several opinions from intermediate appellate courts, perhaps finding this sort of result undesirable, have concluded that it can be avoided. In 902 Associates, the Appellate Term majority held that “compliance with Multiple Dwelling Law § 284 (1) must be pleaded and proven in order to successfully maintain a nonpayment proceeding against an occupant of an interim multiple dwelling” (144 Misc 2d at 317); but Justice Ostrau dissented, protesting that the majority “has now jeopardized the rent roll of almost every interim multiple dwelling in this city” (id. at 320). In Le Sannom Bldg. Corp. v Lassen (173 AD2d 249, 250 [1st Dept 1991]), the Appellate Division concluded, without explanation:

“The tenants’ argument that they cannot be ejected because they are protected loft tenants under Multiple Dwelling Law article 7-C is without merit. While the article protects tenants from being ejected due to the lack of a residential certificate of occupancy, it does not preclude ejectment for nonpayment of rent.”

And in 99 Commercial St. v Llewellyn (240 AD2d 481 [2d Dept 1997]), the Appellate Division sustained a claim for ejectment by the landlord of a loft building, rejecting an argument based on the absence of a residential certificate of occupancy. As in Le Sannom, the court in 99 Commercial did not explain its rationale. It simply said: “Although Llewellyn’s argument has merit in a summary proceeding for the nonpayment of rent, the plaintiff herein brought an ejectment proceeding. The case at bar is an action to recover possession of real property and not to recover rent” (id. at 483).

The tenant here suggests that Le Sannom may be distinguishable from this case, because for all that appears in the opinion the landlord may have been in compliance with the Loft Law. The tenant does not attempt to distinguish 99 Commercial, but says it was wrongly decided.

The results favored by Justice Ostrau in 902 Associates, and reached by the Appellate Division in Le Sannom and 99 Commercial—and in this case, where the Appellate Division relied on its earlier decisions—may make sense from a practical point of view. But we find nothing in the opinions endorsing such results, nothing in the arguments of the landlord here, and nothing anywhere else to explain how they can be reconciled with the text of the statute. They simply cannot. Multiple Dwelling Law § 302 (1) (b) bars not only an action to recover rent, but also an “action or special proceeding . . . for possession of said premises for nonpayment of such rent.” This is such an action, and it is barred. If that is an undesirable result, the problem is one to be addressed by the Legislature.

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

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

Order reversed, etc.


text:
    [971 NE2d 369, 948 NYS2d 239]
    The People of the State of New York, Respondent, v Gilberto Ramos, Appellant.
    Argued May 3, 2012;
    decided June 12, 2012

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Laura Boyd and Steven Banks of counsel), for appellant.
    Appellant was improperly sentenced as a predicate felon because his federal drug conspiracy conviction cannot serve as a predicate felony in New York. (People v Sailor, 65 NY2d 224; People v Muniz, 74 NY2d 464; People v Gonzalez, 61 NY2d 586; People v Olah, 300 NY 96; United States v Shabani, 513 US 10; People v Sheldon, 139 NY 251; People v Washington, 8 NY3d 565; People v Caban, 5 NY3d 143; People v Leisner, 73 NY2d 140; People v Kohut, 30 NY2d 183.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Sean T. Masson and Sylvia Wertheimer of counsel), for respondent.
    Defendant was correctly sentenced as a second felony offender. (People v Muniz, 74 NY2d 464; People v Gonzalez, 61 NY2d 586; People v Walker, 81 NY2d 661; People v Olah, 300 NY 96; United States v Chavez, 549 F3d 119; Lawton v Steele, 119 NY 226; People v West, 106 NY 293; People v Marrero, 69 NY2d 382; People v Goetz, 68 NY2d 96; People v Dlugash, 41 NY2d 725.)
   OPINION OF THE COURT

Smith, J.

We hold that, under New York’s “strict equivalency” standard for convictions rendered in other jurisdictions, a federal conviction for conspiracy to commit a drug crime may not serve as a predicate felony for sentencing purposes.

Defendant was convicted, on his plea of guilty, of third degree robbery, a felony (Penal Law § 160.05). He was sentenced as a second felony offender, on the basis of a previous conviction in the United States District Court for the Southern District of New York of conspiracy to distribute heroin, and to possess it with intent to distribute (21 USC § 846, 21 USC § 841 [a] [1]). The Appellate Division affirmed his conviction and sentence, rejecting the argument that he was improperly adjudicated a predicate felon (People v Ramos, 80 AD3d 537 [1st Dept 2011]). A Judge of this Court granted leave to appeal (17 NY3d 821 [2011]), and we now modify the Appellate Division’s order.

Penal Law § 70.06 (1) (b) says:

“For the purpose of determining whether a prior conviction is a predicate felony conviction the following criteria shall apply:
“(i) The conviction must have been in this state of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state.”

We have interpreted the words “is authorized in this state” to require that the crime of which the defendant was convicted in another jurisdiction include all the essential elements of a New York felony (People v Muniz, 74 NY2d 464, 467-468 [1989]). As a general rule (with an exception not relevant here), inquiry “is limited to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes” (id.). It is immaterial that the crime actually committed in the foreign jurisdiction may be the equivalent of a felony in New York, if the foreign statute would have permitted a conviction for conduct that did not amount to a New York felony (see People v Olah, 300 NY 96, 98-99 [1949]; People v Gonzalez, 61 NY2d 586 [1984]; People v Muniz, 74 NY2d at 467-469). We have referred to our test as one of “strict equivalency,” and have observed that “technical distinctions between the New York and foreign penal statutes can preclude use of a prior felony as a predicate for enhanced sentencing” (Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 751 [2007]).

Thus, to decide if defendant here was properly sentenced as a predicate felon, we must compare the federal drug conspiracy statute, 21 USC § 846, with our own statutes prohibiting conspiracy, Penal Law § 105.00 et seq. When we do so, we find a conspicuous difference: The commission of an overt act by one of the conspirators in furtherance of the conspiracy is required under New York, but not under federal, law. Penal Law § 105.20 says: “A person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy.” The same is not true under the federal statute, as the United States Supreme Court held in United States v Shabani (513 US 10, 11 [1994]): “This case asks us to consider whether 21 [USC] § 846, the drug conspiracy statute, requires the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy. We conclude that it does not.”

Because New York law requires proof of an element that federal law does not, defendant’s federal conspiracy conviction cannot serve as a predicate.

Seeking an escape from this conclusion, the People argue that New York’s “overt act” requirement is not an “element” of the crime of conspiracy, but merely an “evidentiary requirement”— analogous, the People suggest, to the corroboration requirements imposed by certain other sections of the Penal Law (see Penal Law §§ 115.15, 130.16, 255.30). We find the argument unpersuasive. In several cases, beginning in the nineteenth century and continuing into the twenty-first, we have either explicitly labeled the overt act as an “element” of the crime of conspiracy, or have used words equivalent in meaning to “element” to describe it. Thus in People v Sheldon (139 NY 251, 265 [1893]), we said: “The object of the statute [requiring an overt act] was to require something more than a mere agreement to constitute a criminal conspiracy” (emphasis added). In People v Hines (284 NY 93, 112 [1940]), we said: “[A]n overt act is an essential ingredient of the crime of conspiracy. (Penal Law, § 583.) Whatever the relative weight of the unlawful agreement and of the overt act as necessary parts of the crime, the latter is a required elemenf1 (emphasis added). In People v McGee (49 NY2d 48, 57-58 [1979]), we said: “the overt act itself is not the crime in a conspiracy prosecution; it is merely an element of the crime” (emphasis added). In People v Caban (5 NY3d 143, 149 [2005]), we said: “A conspiracy consists of an agreement to commit an underlying substantive crime (here, murder), coupled with an overt act committed by one of the conspirators in furtherance of the conspiracy” (emphasis added). And in People v Washington (8 NY3d 565, 570 [2007]), we repeated the quoted language from Caban.

If we were to analyze the question without the aid of precedent, the result would be the same: The overt act is an element of the crime. It is a fact whose existence the People must plead and prove to obtain a conviction. It differs from corroboration, which is a kind of evidence required to prove a fact. The analogy the People would have us draw fails.

Accordingly, the order of the Appellate Division should be modified by remitting the case to Supreme Court for resentencing, and as so modified, affirmed.

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

Order modified, etc.