text:
    Superb General Contracting, Appellant, v City of New York, Respondent, et al., Defendants.
    Submitted April 5, 2010;
    decided June 3, 2010
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order does not finally determine the action within the meaning of the Constitution and that the stipulation does not qualify as a final judgment within the meaning of CPLR 5602 (a) (1) (ii) to bring up for review the prior nonfinal Appellate Division order because it was entered into without prejudice.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Elbert Welch, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Submitted April 12, 2010;
    decided June 3, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    [931 NE2d 516, 905 NYS2d 532]
    Joseph E. Kaufman, Individually and as Administrator of the Estate of Joseph D. Kaufman, Deceased, et al., Appellants, v Quickway, Inc., et al., Respondents.
    Decided June 8, 2010

      APPEARANCES OF COUNSEL

      Alexander J. Wulwick, New York City, and Duane C. Felton, Staten Island, for appellants.

      Law Firm of Frank W. Miller, East Syracuse (Frank W. Miller of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

In this Dram Shop Act action involving a convenience store’s allegedly illegal sale of alcohol to a visibly intoxicated customer who later caused a fatal traffic accident, the Appellate Division reversed Supreme Court’s order denying defendants’ motion for summary judgment, granted the motion, and dismissed the complaint. The Appellate Division held that the store clerk’s out-of-court statements to a State Trooper investigating the accident were not admissible under the hearsay exception for prior inconsistent statements to rebut her later deposition testimony (see Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518, 524 [1968]; cf. Nucci v Proper, 95 NY2d 597, 603 [2001]). We disagree. The supporting deposition prepared by the Trooper and signed by the witness under penalty of perjury contained numerous indicia of reliability justifying its admissibility under Letendre. And, as in Letendre, the store clerk was available for cross-examination. In addition, the statement was sufficient to create a triable issue regarding whether the driver was visibly intoxicated at the time of the alcohol sale (see Alcoholic Beverage Control Law § 65 [2]; General Obligations Law § 11-101).

Nevertheless, summary judgment was properly granted to defendants. Plaintiffs failed to create a triable issue to rebut defendants’ prima facie evidence demonstrating that no reasonable or practical connection existed between the allegedly illegal sale of alcohol and the accident (see Oursler v Brennan, 67 AD3d 36, 43 [4th Dept 2009], lv granted 68 AD3d 1824 [4th Dept 2009]; Schmidt v Policella, 43 AD3d 1141, 1143 [2d Dept 2007], lv denied 9 NY3d 817 [2008]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


text:
    Kelvin D. Anderson, Appellant, v Young & Rubicam, Respondent.
    Submitted January 11, 2010;
    decided June 8, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. The order affirming the denial of the CPLR 4404 motion to set aside the verdict does not finally determine the action (see Cuadrado v New York City Tr. Auth., 14 NY3d 748 [2010]).


text:
    Denis J. Butler, Appellant, v New York City Transit Authority et al., Respondents.
    Submitted March 15, 2010;
    decided June 8, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. The order denying the CPLR 4404 motion to set aside the verdict resolves the issues raised on the CPLR 4404 motion; it does not dispose of all of the issues in the action (see CPLR 5611). The final and appealable paper to the Court of Appeals is the final judgment entered after the denial of the motion or an Appellate Division order resolving an appeal from that judgment (see Cuadrado v New York City Tr. Auth., 14 NY3d 748 [2010]).


text:
    In the Matter of the Claim of Allison Conescu, Appellant. Commissioner of Labor, Respondent.
    Submitted April 12, 2010;
    decided June 8, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Robert A. Denenberg, Individually and as Administrator of Robert A. Denenberg, a Sole Proprietorship Defined Benefit Pension Plan, Appellant, v Warren Rosen et al., Defendants, and Bankers Life of New York, Also Known as Bankers Life Insurance Company of New York, et al., Respondents.
    Submitted February 22, 2010;
    decided June 8, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v Lynette Caban, Respondent.
    Submitted April 19, 2010;
    decided June 8, 2010
   Motion to amend order dated April 1, 2010 denied [see 14 NY3d 369 (2010)].


text:
    The People of the State of New York, Respondent, v Mujahid Muhammad, Appellant.
    Submitted May 3, 2010;
    decided June 8, 2010
   Motion to vacate this Court’s April 15, 2010 preclusion order granted.


text:
    The People of the State of New York, Respondent, v Louis Theodore, Appellant.
    Submitted April 19, 2010;
    decided June 8, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Walter Grant, Appellant, v Susan A. Connel, Superintendent of Oneida Correctional Facility, Respondent.
    Decided June 8, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).


text:
    Dylan Scerri et al., Respondents, v John Walsh et al., Appellants.
    Submitted April 12, 2010;
    decided June 8, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Keiwan Sital, Respondent, v City of New York, Appellant.
    Submitted January 25, 2010;
    decided June 8, 2010
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 903 (2009)].


text:
    In the Matter of SLS Residential, Inc., et al., Appellant-Respondents, v New York State Office of Mental Health et al., Respondents-Appellants.
    Submitted April 12, 2010;
    decided June 8, 2010
   Motion to seal dismissed as unnecessary in view of Supreme Court’s April 13, 2010 sealing order (Rules of Ct of Appeals [22 NYCRR] § 500.5 [b]).


text:
    In the Matter of Troy SS., Respondent, v Judy UU., Appellant. (And Two Other Related Proceedings.)
    Submitted April 26, 2010;
    decided June 8, 2010
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Family Court’s order denying appellant’s motion to vacate a prior order of that court, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Tyrone Walker, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Submitted April 19, 2010;
    decided June 8, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    Margarita Walter, Appellant, v John Walter, Respondent.
    Submitted April 5, 2010;
    decided June 8, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    Margarita Walter, Appellant, v John Walter, Respondent.
    Submitted May 3, 2010;
    decided June 8, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    [931 NE2d 517, 905 NYS2d 533]
    The People of the State of New York, Respondent, v Trevor Frederick, Appellant.
    Argued April 28, 2010;
    decided June 10, 2010

      APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (David J. Klem and Robert S. Dean of counsel), for appellant.

      Cyrus R. Vance, Jr, District Attorney, New York City (Sylvia Wertheimer and Mary C. Farrington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On November 7, 2003, defendant Trevor Frederick—enraged that his former girlfriend, a 19-year-old student, had gone on a date with the victim—pushed his way into the room in the dormitory-style Manhattan building where the student resided as she opened the door to walk the victim to the subway. Defendant stabbed the student in the neck so forcefully that he nearly severed her spine. As she lay on the floor, paralyzed and bleeding from the head and neck, the student heard defendant say, “Look, you made me kill my girl,” as he stepped “in the direction of the window and where [the victim] was standing.” The student then lost consciousness. The victim’s body was later discovered in the courtyard below the fifth-floor window of the student’s room. He died of blunt impact trauma to the head; his autopsy also revealed multiple knife wounds, including a stab wound to the neck.

Defendant was arrested and charged in an eight-count indictment with second-degree attempted murder, first-degree assault and second-degree aggravated harassment (for calling and leaving a threatening message) for his acts against the student; and with two counts of second-degree murder (depraved indifference and felony murder, with an unspecified burglary as the underlying felony) for his acts against the victim. The indictment also charged defendant with three counts of first-degree burglary for causing injury to the student, using a dangerous instrument and causing injury to the victim.

At defendant’s subsequent trial, Supreme Court dismissed the depraved indifference murder count before submitting the case to the jury. When one juror was unable to continue deliberating, the judge declared a mistrial. Defendant’s second trial resulted in a partial verdict: the jury convicted defendant of all the crimes charged in the indictment except felony murder, as to which they deadlocked, prompting a mistrial on that count. Supreme Court sentenced defendant to concurrent terms of 20 years of imprisonment on the attempted murder, assault and two burglary charges relating to causing physical injury to the student and use of the knife; and imposed a consecutive term of 10 years of imprisonment on the burglary charge relating to causing physical injury to the victim. Thus, the judge sentenced defendant to an aggregate prison term of 30 years. The Appellate Division subsequently modified this judgment by reducing the mandatory surcharge and crime victim assistance fees, and otherwise affirmed (48 AD3d 382 [1st Dept 2008]).

In the meantime, the People returned to the grand jury and successfully sought a new indictment, which charged defendant with both felony murder and first-degree manslaughter for the victim’s death. After defendant was arraigned on the new indictment, Supreme Court dismissed the original indictment, with its sole remaining felony murder count, as superseded by the felony murder count in the new indictment. The case was then assigned to another judge, and defendant moved to dismiss the superseding indictment, which he characterized as “a nullity [that] should be dismissed in its entirety.”

Supreme Court granted the motion on the ground that Criminal Procedure Law § 40.40 (2) barred the People from prosecuting defendant for manslaughter because this crime was a join-able offense uncharged in the original indictment on which trial had commenced. The judge noted that

“in declaring a mistrial on the original indictment, [the trial court] did not dismiss the indictment or otherwise authorize the People to re-present new charges to a Grand Jury. Thus, the People [were] limited to retrying the defendant upon the same accusatory instrument, and the superseding indictment is a nullity”

As a result, the judge reinstated the original indictment.

Defendant next moved to dismiss the reinstated felony murder count, arguing that he could no longer be retried for this crime on the original indictment. But the judge concluded that “[u]pon finding that the superseding indictment was a nullity,” he had the authority to “re-instate[ ] the original indictment containing the sole remaining count of felony murder.”

Defendant waived his right to a jury in favor of a bench trial, at which the judge found him guilty of the felony murder of the victim. The judge thereafter sentenced defendant to 25 years to life imprisonment, to run concurrently with the previously imposed 10-year sentence on the burglary charge relating to causing physical injury to the victim, and “consecutive to any other sentence [defendant was] serving with regard to [the student],” for an aggregate sentence of 45 years to life imprisonment. Defendant appealed, again urging that Supreme Court lacked authority to retry him on the felony murder count in the original indictment, or, alternatively, to run his sentence for the felony murder of the victim consecutively with the sentences previously meted out for his crimes against the student.

The Appellate Division unanimously rejected defendant’s claims. The court opined that the retrial was appropriately based on the felony murder charge in the original indictment, emphasizing that “[t]he sole reason for dismissing the original indictment was that it had been superseded” (62 AD3d 612, 612 [1st Dept 2009]). Further, the Appellate Division “perceive[d] no basis for . . . directing that [defendant’s sentence for felony murder] be served concurrently with [his] prior sentences” (id.).

We agree. First, the retrial properly went forward based on the felony murder count in the original indictment. Although the Criminal Procedure Law does not expressly provide for reinstatement of an indictment under the circumstances presented in this case, it does not preclude what Supreme Court did either. And logically, if the superseding indictment is a nullity—as defendant himself argued and Supreme Court held to be the case—then any action or consequence that flowed from its filing—here, the dismissal of the original indictment—was necessarily a nullity as well. In the absence of any constitutional or statutory double jeopardy bar, the trial court possessed inherent authority to reinstate the original indictment after dismissing the superseding indictment (see Matter of Lionel E, 76 NY2d 747, 749 [1990]).

Finally, the trial court was free to make defendant’s sentence for killing the victim consecutive to the previously imposed sentences for what was an earlier and separate knife attack on the student during defendant’s extended criminal rampage (see People v Ramirez, 89 NY2d 444, 451 [1996]). This was a nonjury trial where the judge, as factfinder, would have known when he sentenced defendant what facts he had found. There is no uncertainty about whether the facts supported a consecutive sentence owing to a lack of specificity in the jury charge, as was the case in People v Parks (95 NY2d 811 [2000]) and People v Alford (14 NY3d 846 [2010]).

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

Order affirmed in a memorandum.

       Defendant correctly notes that the issue of whether the 10-year sentence could be run consecutively to the 20-year sentence is not before us because it is not part of this appeal. Accordingly, we express no view on the matter.


text:
    [930 NE2d 765, 904 NYS2d 691]
    The People of the State of New York, Respondent, v Fatin Johnson, Appellant.
    Decided June 10, 2010

      APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Abigail Everett and Robert S. Dean of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Susan Gliner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Upon remittal from this Court (10 NY3d 875 [2008]), the Appellate Division employed the proper legal standard when it rejected defendant’s argument that the verdict convicting him of depraved indifference murder was against the weight of the evidence (67 AD3d 448 [1st Dept 2009]). Contrary to defendant’s contention, the Appellate Division was not required to evaluate the elements of depraved indifference murder as they were interpreted in certain cases decided prior to his trial. Defendant voiced no objection to the court’s charge as given and failed to request that any specific judicial interpretations of the elements be presented to the jury. Thus, the Appellate Division properly refused to consider such information when it “weighted] the evidence in light of the elements of the crime as charged to the [jury]” (People v Danielson, 9 NY3d 342, 349 [2007]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed in a memorandum.


text:
    Glacial Aggregates LLC, Appellant, v Town of Yorkshire, Respondent.
    Submitted April 5, 2010;
    decided June 10, 2010
   Motion for reargument and/or clarification denied [see 14 NY3d 127 (2010)].


text:
    Donald M. Matusik, Doing Business as J.B. White Realty Associates, Respondent, v Peter R. Ward et al., Appellants.
    Submitted April 19, 2010;
    decided June 10, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Henderson J. Prescod, Appellant, v Betty Leggiero O’Brien, Respondent.
    Submitted April 19, 2010;
    decided June 10, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Hank Richardson, Jr., Appellant, et al., Petitioner, v New York City Housing Authority, Patterson Houses, Respondent.
    Submitted April 19, 2010;
    decided June 10, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    Town of Hempstead, Respondent, v East Coast Resource Group, LLC, Appellant.
    Submitted April 19, 2010;
    decided June 10, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [931 NE2d 94, 905 NYS2d 125]
    Isabella Ayoub, Respondent, v Joseph Ayoub, Appellant.
    Decided June 15, 2010

      APPEARANCES OF COUNSEL

      Mauro Goldberg & Lilling, Great Neck (Matthew W. Naparty, Robert A. Ross and Richard J. Montes of counsel), for appellant.

      Leitner & Getz LLP, New York City (Gregory J. Getz and Jerome M. Leitner of counsel), for respondent.

      Cohen Hennessey Bienstock & Rabin PC., New York City (Harriet Newman Cohen of counsel), Law Guardian.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), appeal dismissed, without costs. Under the circumstances of this case, the parties’ settlement agreement subsequent to the Appellate Division order rendered the appeal to this Court moot. We decline appellant’s request to invoke the mootness exception.

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    In the Matter of Alexis C.R. and Others. Onondaga County Department of Social Services, Respondent; Victor C., Appellant.
    Submitted May 10, 2010;
    decided June 15, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Faith Astrada, Respondent, v Hulbert Archer, Defendant, and Regina Felton, Appellant.
    Submitted May 3, 2010;
    decided June 15, 2010
   Motion, insofar as it seeks leave to appeal from that portion of the March 2010 Appellate Division order that affirmed Supreme Court’s order granting the motion to hold appellant in contempt, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Meadowsweet Dairy, LLC, et al., Appellants, v Patrick Hooker, as Commissioner of Agriculture and Markets, et al., Respondents.
    Decided June 15, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Playtime Boutique, Inc., Appellant, v Phyllis Fraccola, Respondent. (Action No. 1.) Playtime Boutique, Inc., Appellant, v Phyllis Fraccola, Individually and as Sole Shareholder of Hydrania, Inc., Respondent. (Action No. 2.)
    Submitted May 3, 2010;
    decided June 15, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Port of Oswego Authority et al., Appellants, v Pete Grannis, as Commissioner of Environmental Conservation, et al., Respondents.
    Submitted April 5, 2010;
    decided June 15, 2010
   Motion by the World Shipping Council for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein dismissed as academic.


text:
    In the Matter of Syracuse University, Respondent, v Project Orange Associates Services Corporation, Appellant.
    Decided June 15, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.

Judge Read taking no part.


text:
    Robert E. Walsh, Respondent, v Richard F. Kresge, Appellant.
    Submitted May 3, 2010;
    decided June 15, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [931 NE2d 539, 905 NYS2d 555]
    The People of the State of New York, Respondent, v Ivin Williams, Appellant.
    Decided June 17, 2010

      APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Mark W. Zeno and Robert S. Dean of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Matthew C. Williams of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the resentence vacated and the original sentence reinstated.

In June 2001, defendant pleaded guilty to attempted first-degree robbery and was promised a sentence of seven years imprisonment. Postrelease supervision (PRS) was not discussed during the plea proceeding or at sentencing. In November 2008—more than one year after defendant was released from prison—defendant returned to court and Supreme Court, in error, resentenced him, adding a five-year period of PRS. The Double Jeopardy Clause of the Federal Constitution precludes a court from adding PRS to a defendant’s sentence once the defendant has already been released from imprisonment (see People v Williams, 14 NY3d 198, 217 [2010]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.


text:
    [931 NE2d 539, 905 NYS2d 555]
    The People of the State of New York, Respondent, v William Hassell, Appellant.
    Decided June 17, 2010

      APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Mark W. Zeno and Robert S. Dean of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Matthew C. Williams of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the resentence vacated and the original sentence reinstated.

In November 2002, defendant pleaded guilty to second-degree assault and was promised a sentence of 3½ years imprisonment. Although postrelease supervision (PRS) was discussed during the plea proceeding, Supreme Court did not inform defendant of the specific term of PRS it intended to impose. Moreover, Supreme Court did not pronounce PRS at sentencing. In December 2008—more than nine months after defendant was released from prison—defendant returned to court and Supreme Court, in error, resentenced him, adding a five-year period of PRS. The Double Jeopardy Clause of the Federal Constitution precludes a court from adding PRS to a defendant’s sentence once the defendant has been released from imprisonment (see People v Williams, 14 NY3d 198, 217 [2010]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.


author: Graffeo, J. (concurring). Jones, J. (concurring).

text:
    [932 NE2d 871, 906 NYS2d 515]
    The People of the State of New York, Appellant, v Albeiro Valencia, Respondent.
    Argued April 29, 2010;
    decided June 17, 2010
    APPEARANCES OF COUNSEL

      Kathleen M. Rice, District Attorney, Mineola (Judith R. Sternberg, Peter A. Weinstein and Tammy J. Smiley of counsel), for appellant.

      Marianne Karas, Armonk, for respondent.

      Richard D. Willstatter, New York City, Richard J. Barbuto and Stefani Goldin for New York State Association of Criminal Defense Lawyers and another, amici curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed. There is insufficient evidence to support a conviction for depraved indifference assault. The trial evidence established only that defendant was extremely intoxicated and did not establish that he acted with the culpable mental state of depraved indifference.

Graffeo, J. (concurring).

Defendant’s blood alcohol level was about three times the legal limit when he drove at night in the wrong direction on a Long Island parkway at a high rate of speed. He continued on this course despite attempts by oncoming drivers to warn him of the danger he was creating. After approximately four miles, defendant crashed head-on into another vehicle and then careened into another car. Defendant’s response after being informed that he had injured other people was: “I don’t know and I don’t care.”

Defendant was indicted for, among other offenses, vehicular assault in the second degree for causing serious physical injury to another person while driving in an intoxicated condition (Penal Law § 120.03 [1]), assault in the second degree for causing serious physical injury with his automobile (Penal Law § 120.05 [4]), and assault in the first degree—the top count—for causing serious physical injury while recklessly creating a grave risk of death under circumstances evincing a depraved indifference to human life (Penal Law § 120.10 [3]). The trial court determined that the People failed to prove that defendant acted with depraved indifference at the time of the collision because he was so drunk that he was “oblivious” to the danger he created. The court did, however, find defendant guilty of first-degree, depraved indifference assault on the theory that he created a grave risk of harm by becoming extremely inebriated knowing that he would eventually drive himself home from his friend’s house.

The Appellate Division reversed the first-degree assault conviction, concluding that defendant’s state of mind before he drove home was too remote in time from the car crash. The reversal of that conviction reduced defendant’s culpability from a class B felony to the class D felony of second-degree assault and a five-year determinate prison sentence.

We are now affirming the reduction to assault in the second degree, but on narrower grounds, with which I concur, because of the lack of evidence to support all the elements of depraved indifference assault. But this leaves an open issue: does the voluntary consumption of alcohol to the point of extreme inebriation preclude the formation of a depravedly indifferent state of mind?

For many years, the phrase “[u]nder circumstances evincing a depraved indifference to human life” had consistently been interpreted to refer to objective circumstances, not a state of mind (see e.g. People v Register, 60 NY2d 270 [1983]; People v Sanchez, 98 NY2d 373 [2002]). As a result, it was recognized that the intoxication defense (see Penal Law § 15.25) did not apply to the depraved indifference element (see People v Register, 60 NY2d at 279).

In a series of cases that culminated with People v Feingold (7 NY3d 288 [2006]), this Court declared that depraved indifference is a state of mind. In holding that depraved indifference is a mens rea component, this state of mind element was described in Feingold as “best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” (7 NY3d at 296 [internal quotation marks omitted]). Depraved indifference “is embodied in conduct that is ‘so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy’ as to render the actor as culpable as one whose conscious objective” is to cause a particular result (People v Suarez, 6 NY3d 202, 214 [2005]). In Feingold, this Court did not depart from every aspect of our prior jurisprudence on this subject. Indeed, we have re-emphasized that there are certain “[quintessential examples” of depraved indifference, including—of particular relevance—the act of “driving an automobile along a crowded sidewalk at high speed” (People v Suarez, 6 NY3d at 214; see also People v Gonzalez, 1 NY3d 464, 467 [2004]).

Certainly, the Penal Law recognizes that intoxication may be used “by the defendant whenever it is relevant to negative an element of the crime charged” (Penal Law § 15.25). But it is also well settled that voluntary intoxication does not excuse a reckless state of mind (see Penal Law § 15.05 [3]). This is because “recklessness itself—defined as conscious disregard of a substantial risk—encompasses the risks created by [a] defendant’s conduct in getting drunk” (People v Register, 60 NY2d at 280, overruled on other grounds by People v Feingold, 7 NY3d 288 [2006]). The same may be true for the “extreme recklessness . . . that is needed to establish depraved indifference” (People v Baker, 14 NY3d 266, 273 [2010]) since it makes little sense to allow intoxication to be asserted as a defense to depravedly indifferent conduct that is the direct result of severe inebriation: “there is no social or penological purpose to be served by a rule that permits one who voluntarily drinks to be exonerated from failing to foresee the results of his conduct if he is successful at getting drunk” (People v Register, 60 NY2d at 280-281, overruled on other grounds by People v Feingold, 7 NY3d 288 [2006]).

When the accident happened in this case—in November . 2005—the People’s charging options were more limited than they are today. At that time, the Penal Law contained fewer assault and homicide offenses that applied to drunk drivers, such as vehicular assault in the second degree. In 2006, the Legislature added a new subdivision to first-degree vehicular assault (Penal Law § 120.04) by elevating second-degree vehicular assault (Penal Law § 120.03), a class E felony punishable by a maximum indeterminate sentence of 1⅓ to 4 years in prison, to a class D felony punishable by a prison term of up to 2⅓ to 7 years when a person causes serious physical injury to another individual while operating a vehicle with a blood alcohol level of .18% or more (see L 2006, ch 732, § 21, amending Penal Law § 120.04 [1]). Had this law been in existence a year earlier, defendant may have been charged with this offense.

After enactment of the 2006 legislation, and apparently as a result of our revision of depraved indifference jurisprudence, it became more difficult to prove depraved indifference in vehicular crimes where assault in the first degree or murder in the second degree was charged—a drunk driver accused of acting with depraved indifference to human life could “[p]erversely” try “to defend such a charge by using a claim of extreme intoxication” (Letter of Michael E. Bongiorno, President of New York State District Attorney’s Association, to Governor Spitzer, June 15, 2007, Bill Jacket, L 2007, ch 345, at 16) to negate the requisite state of mind requirement.

Consequently, in 2007, the Legislature created the new crime of aggravated vehicular assault (see L 2007, ch 345). That crime is similar to vehicular assault in the first degree except that it requires the People to prove that the defendant drove recklessly (see Penal Law § 120.04-a). Aggravated vehicular assault is a class C felony punishable by an indeterminate prison term of up to 5 to 15 years. In addition, another provision was added to article 125 of the Penal Law enacting the offense of aggravated vehicular homicide, a class B violent felony punishable by a maximum determinate sentence of 25 years’ imprisonment. The stated purpose of this 2007 legislative package was to “repair th[e] apparent anomaly” (Bongiorno Letter, Bill Jacket, L 2007, ch 345, at 16) caused by Feingold in cases where an inebriated driver who maimed or killed another person could rely on his intoxication to mitigate criminal responsibility.

Yet there remains disagreement between courts as to whether the transformation of depraved indifference into a subjective state of mind precludes intoxication as a defense to that mens rea (compare People v Wimes, 49 AD3d 1286 [4th Dept 2008], lv denied 11 NY3d 743 [2008], and People v Coon, 34 AD3d 869 [3d Dept 2006], with People v Wells, 53 AD3d 181 [1st Dept 2008], lv denied 11 NY3d 858 [2008]). I therefore write separately to point out that the Legislature, which is entrusted with determining social policy and degrees of culpability, should resolve this perplexing question of whether intoxication, to whatever extent, functions as a defense to depraved indifference crimes.

There are a variety of options if the Legislature chooses to act. For example, Penal Law § 15.05 could be amended to add depraved indifference as a culpable mental state (consistent with Feingold) and specify, as it does with the mens rea of recklessness, that voluntary intoxication cannot be used to undermine a depravedly indifferent state of mind. The Legislature could also elect to include specific provisions in the first-degree assault and second-degree murder statutes to cover severely intoxicated drivers. This would differ from the existing aggravated vehicular assault and homicide statutes because they do not require the People to establish both excessive inebriation and serious injury or death to more than one person (see Penal Law §§ 120.04-a, 125.14). Or, if the Legislature sees fit, it could declare that intoxication is a defense to the depraved indifference mens rea component with respect to all crimes or just vehicular crimes. Although the courts have and will continue to rule on the applicability of the intoxication defense in particular cases, the Legislature is more suitably charged with determining the level of crime, the appropriate statutory defenses and the extent of punishment to attribute to the various crimes related to the operation of motor vehicles.

Jones, J. (concurring).

While I agree with the result in the majority’s memorandum, I write separately to express my position on the necessity of a temporal connection between mens rea and actus reus in the context of depraved indifference offenses.

Sometime after drinking at the house of a friend in Nassau County, defendant, with a blood alcohol level over .21, got into his car and drove onto the Wantagh State Parkway in the direction of oncoming traffic at a speed of 60 miles per hour. A few minutes later, defendant collided with two vehicles, injuring the drivers, one severely. Various witnesses observed that defendant appeared not to know that he was about to crash and never attempted to avoid the accident. When told about the accident, defendant stated that he “didn’t know” what had happened and “didn’t care.” He was unable to tell the police at the scene if there was a passenger in his car and he kept falling asleep when the police tried to question him.

Defendant was charged with numerous offenses, including assault in the first degree (depraved indifference assault). At defendant’s nonjury trial, the People presented two theories in support of the first-degree assault charge, either of which, they argued, was sufficient to sustain a conviction. First, they argued that the nature of defendant’s behavior behind the wheel established proof beyond a reasonable doubt that (1) he was aware of what he was doing while he was driving, and (2) he, with depraved indifference to human life, continued his course of conduct. The trial court, as the trier of fact, rejected this theory, finding that defendant was so intoxicated at the time of the accident that he was oblivious to his circumstances. Thus, according to the court, defendant lacked the mens rea of depraved indifference at the time of the collision.

The People’s second theory was that defendant, prior to his state of oblivion, consciously drank himself “into a state of gross impairment.” In particular, they argued that his conscious choice to drink, get drunk, and then drive reflected a complete indifference to the foreseeable circumstances he might face while driving drunk. In other words, it was the People’s contention that defendant’s conduct, prior to getting into his car, established his guilt of the crime, including the applicable mens rea.

The defense countered that all of the evidence, including the prosecution expert’s testimony that extreme intoxication could cause micro-blackouts, showed that defendant was unaware of the danger he was creating and that if he did not know that he was driving in the wrong direction, he was not guilty of depraved conduct. Further, the defense argued that at the time of the collision, defendant did not have the requisite depraved state of mind to be guilty of first-degree assault.

The trial court agreed with the People, holding that a conviction for assault in the first degree could be based on defendant’s excessive drinking to a state of oblivion, knowing that shortly thereafter he would be driving himself home on heavily trafficked roads, “was evidence of depraved indifference to human life.” In so holding, the court found that “liability for depraved conduct can be predicated on the facts of this case even though defendant was not aware or appreciative of the dangers of his conduct at the time of the collision or moments before.”

In addition to assault in the first degree, Supreme Court convicted defendant of assault in the second degree, vehicular assault in the second degree, assault in the third degree, operating a motor vehicle while under the influence of alcohol (two counts), reckless driving, and other violations of the Vehicle and Traffic Law. The Appellate Division modified Supreme Court’s judgment by vacating the conviction of assault in the first degree. Relying on People v Feingold (7 NY3d 288 [2006]), the court held the evidence was legally insufficient to establish that defendant acted with the culpable mental state of depraved indifference to human life at the time he collided with the two vehicles. The court found unpersuasive the People’s contention that the mens rea component of depraved indifference assault may be satisfied by considering the defendant’s state of mind at a point much earlier in time to the accident, when he drank excessively, knowing he was going to drive himself home. The People appeal by permission of the Appellate Division.

With respect to crimes requiring mental culpability and an act or omission,

“it is a basic premise of Anglo-American criminal law that the physical conduct and the state of mind must concur. Although it is sometimes assumed that there cannot be such concurrence unless the mental and physical aspects exist at precisely the same moment of time, the better view is that there is concurrence when the defendant’s mental state actuates the physical
conduct” (LaFave, Substantive Criminal Law § 6.3 [a], at 451 [2d ed] [footnotes omitted]).

Based on the foregoing, the mens rea component of depraved indifference assault may not be satisfied by considering the defendant’s state of mind at a point much earlier in time than the accident, in this instance when he was drinking at his friend’s house. As such, it cannot be argued that defendant’s mental state at the time he was drinking actuated his physical conduct. Stated differently, in this case, there is no concurrence of mens rea and actus reus. In conclusion, defendant’s state of mind when he consumed the alcohol was too temporally remote from the act of driving to support a conviction of assault in the first degree.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur; Judges Graffeo and Jones concur in separate concurring opinions.

Order, insofar as appealed from, affirmed in a memorandum.

       Like vehicular assault in the first degree, aggravated vehicular assault presumably could have been available in this case if it had been added to the Penal Law before this crime occurred.

      . Under Penal Law § 120.10 (3), “[a] person is guilty of assault in the first degree when . . . [u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person.”

      . Actus reus is defined as “[t]he wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability” (Black’s Law Dictionary 39 [8th ed 2004]).


text:
    In the Matter of Brendan N., a Neglected Child. Columbia County Department of Social Services, Respondent; Arthur N., Appellant. (Proceeding No. 1.) In the Matter of Janet N. et al., Appellants, v Arthur N. et al., Respondents. (Proceeding No. 2.)
    Submitted April 26, 2010;
    decided June 17, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    LaSalle Bank National Association, Respondent, v Keisha Henderson, Appellant, et al., Defendant.
    Submitted April 19, 2010;
    decided June 17, 2010
   Motion for leave to appeal dismissed upon the ground that appellant failed to appeal to the Appellate Division from the judgment of Supreme Court which aggrieved her (see Matter of Frost v Blum, 48 NY2d 1013 [1980]).

Judge Jones taking no part.


text:
    In the Matter of Robert McKinnon, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Submitted April 26, 2010;
    decided June 17, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Thomas E. O’Brien et al., Respondents, and J.P. Morgan Chase Bank, N.A., et al., Appellants, v Town of Huntington et al., Respondents.
    Submitted April 12, 2010;
    decided June 17, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Thomas E. O’Brien et al., Appellants, and J.E Morgan Chase Bank, N.A., et al., Respondents, v Town of Huntington et al., Respondents.
    Submitted May 3, 2010;
    decided June 17, 2010
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Overseas Private Investment Corporation, Respondent, v Nam Koo Kim et al., Appellants.
    Submitted April 19, 2010;
    decided June 17, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. John Perez, Appellant, v M. Hourihane, Respondent.
    Submitted April 26, 2010;
    decided June 17, 2010
   Motion for leave to appeal dismissed upon the ground that appellant has failed to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Yolanda Strong, Appellant, v New York City Department of Education, Respondent.
    Submitted April 5, 2010;
    decided June 17, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 704 (2010)].


text:
    Philip Tafelski, Respondent, v Buffalo City Cemetery, Inc., Appellant.
    Submitted May 3, 2010;
    decided June 17, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Debra Weissman, Appellant, v Ronald Weissman, Respondent.
    Submitted April 19, 2010;
    decided June 17, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


author: Pigott, J.

text:
    [930 NE2d 214, 904 NYS2d 293]
    In the Matter of Juanita A., Respondent, v Kenneth Mark N., Appellant.
    Argued March 25, 2010;
    decided May 4, 2010

      POINTS OF COUNSEL

      Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), for appellant.
    I. The intermediate appellate court erred in affirming the judgment of the Family Court which adjudicated appellant to be the father and imposed on him a duty of support. (Matter of Shondel J. v Mark D., 7 NY3d 320; Matter of John Robert P. v Vito C., 23 AD3d 659; Matter of Juan A. v Rosemarie N., 55 AD3d 827; Matter of Antonio H. v Angelic W., 51 AD3d 1022; Matter of Bruce W.L. v Carol A.P., 46 AD3d 1471, 10 NY3d 707; Matter of Isaiah A. C. v Faith T., 43 AD3d 1048; Matter of Darlene L.-B. v Claudio B., 27 AD3d 564; Matter of Sharon GG. v Duane HH., 95 AD2d 466, 63 NY2d 859; Matter of Boyles v Boyles, 95 AD2d 95; Matter of Charles v Charles, 296 AD2d 547.) II. Appellant was denied his right to due process and his right to counsel because the Family Court ordered genetic marker testing without advising him that he had a right to assignment of counsel and a right to an adjournment to confer with counsel. Appellant was further denied his right to effective assistance of counsel, once appointed. The intermediate appellate court erred in finding that trial counsel was not ineffective and that appellant waived review of the magistrate’s failure to properly advise him of his rights. (Matter of Jung [State Commn. on Jud. Conduct], 11 NY3d 365; Matter of Ella B., 30 NY2d 352; Matter of Wilson v Bennett, 282 AD2d 933; Matter of Brown v Wood, 38 AD3d 769; Matter of Machado v Del Villar, 299 AD2d 361; Matter of Gaudette v Gaudette, 263 AD2d 620; Matter of Hassig v Hassig, 34 AD3d 1089; Matter of Delafrange v Delafrange, 24 AD3d 1044; Matter of Darryl B.W. v Sharon M.W., 49 AD3d 1246; Matter of Fralix v Thornock, 9 AD3d 890.)

      Susan Gray Jones, Canandaigua, Law Guardian.

    I. The intermediate appellate court correctly affirmed that lower court’s adjudication of paternity and declined to apply the doctrine of equitable estoppel. (Matter of Shondel J. v Mark D., 7 NY3d 320; Matter of Ruby M.M. v Moses K., 18 AD3d 471; Matter of Dowed v Munna, 306 AD2d 278; Ocasio v Ocasio, 276 AD2d 680; Brian B. v Dionne B., 267 AD2d 188; Matter of Saragh Ann K. v Armando Charles C., 67 AD3d 537; Matter of John Robert E v Vito C., 23 AD3d 659; Purificati v Paricos, 154 AD2d 360; Howard S. u Lillian S., 62 AD3d 187.) II. Appellant was provided effective assistance of counsel. (Matter of Laura LL. v Robert LL., 186 Misc 2d 642; Strickland v Washington, 466 US 668; Matter of Shangraw v Shangraw, 61 AD3d 1302; Matter of Chaquill R., 55 AD3d 975; Matter of St. Lawrence County Support Collection Unit v Cook, 57 AD3d 1258; Matter of Yette v Yette, 39 AD3d 952, 9 NY3d 802; Matter of Kilmartin v Kilmartin, 44 AD3d 1099; Matter of Bryan W., 299 AD2d 929; Matter of Nagi T. v Magdia T, 48 AD3d 1061; Marivel G. v Marcus D., 6 Misc 3d 1030[A], 2005 NY Slip Op 50230[U].)
   OPINION OF THE COURT

Pigott, J.

The issue before this Court is whether a biological father may assert an equitable estoppel defense in paternity and child support proceedings. Under the circumstances of this case, where another father figure is present in the child’s life, we hold that he may assert such a claim.

On June 25, 1994, the child, A., was born. At the time, mother was unmarried, but living with Raymond S., who was listed as A.’s father on her birth certificate. Mother and Raymond had a previous child together and, after the birth of A., had another child. When A. was seven years old, during a family dispute, she became aware that Raymond may not be her biological father. At that time, mother called Kenneth at his home in Florida and had him speak with A. The conversation lasted less than 10 minutes, during which time A. asked questions concerning his physical characteristics. Kenneth’s attempt to speak with A. a second time was rebuffed by Raymond, who warned Kenneth not to speak to A. again. Kenneth has had no further contact with A.

In 2006, when A. was approximately 12 years old, mother filed the instant petition against Kenneth, seeking an order of filiation and child support. Kenneth appeared before Family Court for the first time by way of telephone. The Support Magistrate advised Kenneth, among other things, that he had the right to admit or deny that he was the father of A. However, he did not advise Kenneth that he had the right to assignment of counsel, or inquire whether he wished to consult with counsel prior to proceeding. Kenneth agreed to the ordered genetic marker testing, which indicated a 99.99% probability that Kenneth is indeed A.’s biological father.

At a hearing in January 2007, Kenneth, having now been assigned counsel, appeared once again via telephone, but protested that he had yet to speak with the lawyer assigned to him. Counsel admitted that he had not spoken to his client, and that the “file fell through the cracks for me.” Despite Kenneth’s protest, the Support Magistrate proceeded with the hearing. When the issue of equitable estoppel was raised by Kenneth, the Magistrate, lacking the authority to hear that issue, transferred the case to a judge of the Family Court. That court, determining the issue on motion papers and oral argument, held that Kenneth was the father of A. and entered an order of filiation.

The Appellate Division affirmed, holding that the doctrine of equitable estoppel is applicable in paternity proceedings only where it is invoked to further the best interests of the child, and “generally is not available to a party seeking to disavow the allegation of parenthood for the purpose of avoiding child support” (63 AD3d 1662, 1663 [4th Dept 2009]). The court also rejected Kenneth’s contention that he was denied effective assistance of counsel (id.). We granted leave to appeal (13 NY3d 830 [2009]) and now reverse.

In Matter of Shondel J. v Mark D. (7 NY3d 320 [2006]), we set forth the law applicable to equitable estoppel in paternity and child support proceedings. We noted that the

“purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position” (id. at 326).

We concluded that the “paramount” concern in such cases “has been and continues to be the best interests of the child” (id.).

Equitable estoppel has been used, as it was in Shondel J., to prevent a man from avoiding child support by claiming that he is not the child’s biological father (id. at 328). In such a case, the man has represented himself to be the child’s father and the child’s best interests are served by a declaration of fatherhood. The doctrine in this way protects “the status interests of a child in an already recognized and operative parent-child relationship” (Matter of Baby Boy C., 84 NY2d 91, 102 n [1994]). Here, Kenneth seeks to invoke the doctrine against mother, who led Kenneth to form the reasonable belief that he was not a father and that Raymond is A.’s father. He argues that it is not in A.’s best interest to have her current, child-father relationship with Raymond interrupted.

At the time the instant petition was brought, A. was 12 years old and had lived in an intact family with Raymond and her mother. His name appears on her birth certificate and he is the biological father of her older and younger siblings. For most of A.’s life, she referred to Raymond as father. Thus, Kenneth appropriately raises an issue as to whether it is in A.’s best interest to have someone besides Raymond declared her father this late in her childhood. As a result, we conclude it is proper for him to assert a claim of estoppel to, among other things, protect the status of that parent-child relationship.

We disagree with the Law Guardian’s position that a person who has already been determined to be a child’s biological father cannot raise an equitable estoppel argument. Indeed, the doctrine has been used to prevent a biological father from asserting paternity rights when it would be detrimental to the child’s interests to disrupt the child’s close relationship with another father figure (see e.g. Matter of Fidel A. v Sharon N., 71 AD3d 437 [1st Dept 2010]; Matter of Richard W. v Roberta Y., 240 AD2d 812 [3d Dept 1997]; Purificati v Paricos, 154 AD2d 360 [2d Dept 1989]). The same best-interests considerations that justify estopping a biological father from asserting his paternity may justify preventing a mother from asserting it. Indeed, whether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, equitable estoppel is only to be used to protect the best interests of the child. Therefore, we hold that the doctrine of equitable estoppel may be used by a purported biological father to prevent a child’s mother from asserting biological paternity—when the mother has acquiesced in the development of a close relationship between the child and another father figure, and it would be detrimental to the child’s interests to disrupt that relationship.

We conclude that a hearing is needed in this case to decide the merits of Kenneth’s claim. At that hearing, Raymond must be joined as a necessary party, so that Family Court may consider the nature of his relationship with the child and make a proper determination of A.’s best interests. Consequently, we remit the matter to Family Court for such a hearing and determination.

In view of the foregoing, we need not address Kenneth’s remaining issues. However, both the Support Magistrate’s failure to advise Kenneth of his right to counsel before genetic testing was done and counsel’s failure to consult with Kenneth before the January 2007 hearing are troubling events, which should not have occurred.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Family Court for further proceedings in accordance with this opinion.

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

Order reversed, etc.

       We note that Family Court should have addressed the equitable estoppel issue prior to directing that Kenneth undergo genetic marker tests (see Shondel J., 7 NY3d at 330). The fact that testing was conducted, however, does not bar the court from thereafter deciding the estoppel issue, as Shondel J. itself held.