author: Pigott, J.

text:
    [945 NE2d 1010, 920 NYS2d 760]
    The People of the State of New York, Respondent, v Mujahid Muhammad, Appellant.
    Argued January 12, 2011;
    decided February 17, 2011

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Peter Theis and Robert S. Dean of counsel), for appellant.
    I. The evidence was not legally sufficient to establish that defendant knowingly possessed the two forged credit cards found out of view in the borrowed car. (People v Danielson, 9 NY3d 342; Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; People v Saunders, 85 NY2d 339; People v Ford, 66 NY2d 428; People v Crespo, 198 AD2d 85; People v Albright, 59 AD3d 336; People v Bailey, 13 NY3d 67; People v Fitzgerald, 156 NY 253.) II. The court’s refusal to charge the jury that Penal Law § 170.25 required the People to prove defendant’s knowing possession of the two forged credit cards rendered the charge inadequate and removed the contested element from the jury’s consideration. (People v Ladd, 89 NY2d 893; People v Russell, 266 NY 147; People v Flynn, 79 NY2d 879; People v Ford, 11 NY3d 875; People v Saunders, 85 NY2d 339; People v Ford, 66 NY2d 428; People v Wood, 58 AD3d 242; People v Williams, 10 AD3d 213; People v Lewis, 64 NY2d 1031; People v Walker, 198 NY 329.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Gina Mignola and Alan Gadlin of counsel), for respondent.
    I. Based on the totality of the circumstances, the jurors were entitled to conclude that defendant knew the two forged credit cards were in the car that he alone was driving, particularly since his other personal belongings were strewn about the car. (Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; People v Carter, 63 NY2d 530; People v Kennedy, 47 NY2d 196; People v Barnes, 50 NY2d 375; People v Danielson, 9 NY3d 342; People v Bailey, 13 NY3d 67; People v Santi, 3 NY3d 234; People v Norman, 85 NY2d 609; People v Acosta, 80 NY2d 665.) II. The court correctly instructed the jury that defendant had to know he possessed the credit cards. (People v Saunders, 85 NY2d 339; People v Ford, 66 NY2d 428; People v Wood, 58 AD3d 242; People v Drake, 7 NY3d 28; People v Samuels, 99 NY2d 20; People v Ladd, 89 NY2d 893; People v Umali, 10 NY3d 417; People v Jeffries, 56 AD3d 1166; People v Williams, 5 NY3d 732; People v Lewis, 64 NY2d 1031.)
   OPINION OF THE COURT

Pigott, J.

Defendant was driving a borrowed car when he was stopped by a police officer for a nonoperational headlight. He could not produce a driver’s license and gave inconsistent responses when asked his itinerary. The officer frisked defendant and found a wallet containing a North Carolina ID card, which he used to check defendant’s driving history. Upon learning that defendant’s New York driver’s license had been suspended, the officer arrested defendant for driving with a suspended license, and took him to the police precinct.

At the precinct, the same police officer searched defendant and vouchered the belongings he was carrying. In the course of inventorying the automobile, the officer discovered two fake credit cards, as well as a number of documents belonging to the defendant “spread out all over the car.” One credit card was found in a jacket on the backseat of the car, the other was found in the side pocket of the driver’s door of the vehicle. Defendant was charged with two counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25).

At trial, representatives of the credit card companies testified that the bank cards were forgeries. At the end of the People’s case, defendant moved for a trial order of dismissal on legal insufficiency grounds, arguing, in essence, that the People had failed to prove beyond a reasonable doubt that defendant had knowing possession of the bank cards. Supreme Court denied defendant’s motion.

At the conclusion of the trial, Supreme Court charged the jury with the statutory definition of second-degree criminal possession of a forged instrument, and also instructed the jury that to possess means “to have actual physical possession or to exert a knowing dominion or control over,” explaining that “a person has tangible property in his constructive possession when that person exercises a level of control over the area in which the property is found . . . sufficient to give him the ability to use or dispose of the property.”

Supreme Court further instructed the jury, in accordance with Penal Law § 170.27, that “if the People have proved beyond a reasonable doubt that the defendant possessed two or more forged instruments that purport to be credit cards, you may infer but are not required to infer from that fact that the defendant possessed them with knowledge that they were forged and with intent to defraud, deceive or injure another.”

Defense counsel challenged the jury charge on the ground that it did not adequately convey to the jury that the People must prove knowing possession. Supreme Court declined to modify the jury charge, and the case was submitted to the jury.

The jury found defendant guilty of both counts. Defendant moved to set aside the verdict, arguing that the evidence was legally insufficient to establish that his possession was knowing and that Supreme Court’s jury charge on possession amounted to reversible error. Supreme Court denied the motion.

The Appellate Division affirmed Supreme Court’s judgment, holding that “the circumstances, including the proximity of the cards to items that can reasonably be inferred to be defendant’s property, supported the conclusion that defendant was aware he possessed the cards” (66 AD3d 424 [2009]), and that “[t]aken as a whole, the court’s charge properly conveyed to the jury that the People were required to prove defendant knew he possessed the credit cards” (id. [citation omitted]). A Judge of this Court granted defendant leave to appeal, and we now affirm.

“A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses [a] forged instrument” (Penal Law § 170.25). Possession within the meaning of the second-degree criminal possession of a forged instrument statute, must, like possession in the criminal possession of a weapon context, involve awareness of the possession (see People v Saunders, 85 NY2d 339, 341-342 [1995]). In short, “the mental culpability required for a crime of possession is, at the very least, awareness of the possession” (People v Sanchez, 110 AD2d 665, 665 [2d Dept 1985]).

Knowing possession of tangible property may in the appropriate circumstances be inferred from evidence showing that the defendant had the property in his physical possession, or that he “exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the [property] is found or over the person from whom the [property] is seized” (People v Manini, 79 NY2d 561, 573 [1992]). Dominion or control is necessarily knowing, and such “constructive possession” may qualify as knowing possession (see Saunders, 85 NY2d at 344).

With respect to defendant’s sufficiency challenge, we view the evidence adduced at trial in the light most favorable to the People. A rational trier of fact could have inferred beyond a reasonable doubt from the evidence—including the fact that defendant had strewn his belongings through the car he was driving—that defendant must have known the cards were in the car.

Defendant also challenges the jury charge as failing to convey that knowing possession of the cards was required. In fact, however, Supreme Court, when defining “to possess”—as that term is used in the definition of second-degree criminal possession of a forged instrument—accurately instructed the jury that “to possess” means to have physical possession of or “to exert a knowing dominion or control over [the forged instrument]” (emphasis added). Supreme Court’s jury charge, which in this manner expressly conveyed the requirement that possession be knowing, was not in error merely because it failed to append the word “knowing” each time the word “possession” was used, for example in the explanation of the Penal Law § 170.27 presumption. Indeed, such a charge might in this case have run the risk of confusing the jury, by suggesting that it could not infer the requisite knowing possession from constructive possession. A reasonable juror, hearing the whole charge, would have understood that the Penal Law § 170.27 presumption—that a person who possesses two or more forged instruments purporting to be credit or debit cards knows that they are forged and intends to defraud, deceive or injure another—only applies if the person knowingly possesses the cards.

Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed.

       In adding the word “knowing” before “dominion or control over,” Supreme Court went further, by way of clarification, than the Criminal Jury Instructions (CJI) recommend. The CJI charge merely states that “POSSESS means to have physical possession or otherwise to exercise dominion [or] control over tangible property” (CJI2d[NY] Penal Law § 170.25), echoing the statutory definition (see Penal Law § 10.00 [8]).


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [944 NE2d 1127, 919 NYS2d 488]
    The People of the State of New York, Respondent, v Isidore Farkas, Appellant.
    Argued January 11, 2011;
    decided February 22, 2011

      POINTS OF COUNSEL

      Meissner Kleinberg & Finkel LLP, New York City (Ronald M. Kleinberg, Richard A. Finkel and Adam Hurt of counsel), for appellant.
    I. The Appellate Division erred in holding that, under CPL 30.30, time excludable from the assault-based charges of the complaint was also excludable from larceny-based charges first filed in an indictment more than 13 months later. (People v Anderson, 66 NY2d 529; People v Osgood, 52 NY2d 37; People v Silas, 1 Misc 3d 209; People v Sinistaj, 67 NY2d 236; People v Cruz, 111 AD2d 725, 66 NY2d 614, 67 NY2d 650; People v Rodriguez, 150 AD2d 265, 74 NY2d 818; People v Colon, 76 AD2d 805; People v Cintron, 161 Misc 2d 335.) II. Permitting the prosecution to apply excludable periods to the theft-related charges in the indictment would contravene the intent of CPL 30.30. (People v Osgood, 52 NY2d 37.)

      Charles J. Hynes, District Attorney, Brooklyn (Seth M. Lieberman and Leonard Joblove of counsel), for respondent.
    The trial court erred in dismissing the theft-related counts of the indictment. (People v Sinistaj, 67 NY2d 236; People v Lomax, 50 NY2d 351; People v Osgood, 52 NY2d 37; People v Hicks, 55 AD3d 1138; People v Rosario, 176 AD2d 830; People v Fehr, 45 AD3d 920; People v Brickley, 306 AD2d 551; People v Heller, 120 AD2d 612; People v Cooper, 98 NY2d 541; People v Kendzia, 64 NY2d 331.)
   OPINION OF THE COURT

Chief Judge Lippman.

The issue presented by this appeal is whether the theft-related charges in the indictment, filed over a year after the initial accusatory instrument, are barred by the speedy trial provisions of CPL 30.30. We find that they are not and therefore affirm.

Complainant was taking photographs of a construction site in the Borough Park section of Brooklyn on August 18, 2005, when he was approached by defendant. After complainant tried to walk away, defendant punched him in the face several times and took his camera. The police issued defendant a desk appearance ticket, charging him with assault in the third degree, and he appeared in Criminal Court on September 26, 2005 to answer that charge. Approximately one month later, the People filed a misdemeanor complaint charging defendant with assault in the third degree, menacing in the third degree and harassment in the second degree. A series of adjournments followed and, during that period, the People answered ready for trial. On November 8, 2006, the People filed an indictment, also based on the August 18, 2005 incident, charging defendant with robbery in the first, second and third degrees, petit larceny, assault in the second and third degrees, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree and menacing in the third degree. The People filed a statement of readiness for trial the same day.

Defendant moved to dismiss the theft-related counts in the indictment on CPL 30.30 speedy trial grounds, arguing that the time began accruing for speedy trial purposes when defendant appeared on the desk appearance ticket, but that all delay in pursuing the indictment was solely attributable to the People. Supreme Court found no speedy trial violation as to the assault-related counts, but dismissed the theft-related counts on the basis urged by defendant, finding that the new, more serious charges were too much of a departure from the original charges.

The Appellate Division reversed the Supreme Court order, insofar as appealed from, and reinstated the theft-related counts of the indictment (65 AD3d 700 [2d Dept 2009]). The Court found that the excludable time and the People’s statement of readiness should also be applied to the theft-related charges, since those charges were based on the same incident, and some of the same acts, charged in the prior accusatory instrument. The Court therefore found the People were timely ready to proceed with all charges in the indictment. A Judge of this Court granted defendant leave to appeal (14 NY3d 770 [2010]) and we now affirm.

Criminal Procedure Law § 30.30, the speedy trial statute, sets forth the time frame, beginning with the commencement of the action, within which the People must answer ready for trial and specifies certain periods of time that must be excluded from the calculation of the People’s readiness time (CPL 30.30 [1], [4]). A criminal action is typically commenced when an accusatory instrument is filed against a defendant in criminal court (see CPL 1.20 [16]). Once the action has been commenced, it “includes the filing of all further accusatory instruments directly derived from the initial one” (CPL 1.20 [16] [b]). Where, as here, the defendant has been served with an appearance ticket, the statute deems the commencement date of the action the date of defendant’s first criminal court appearance in response to the ticket (see CPL 30.30 [5] [b]; People v Stirrup, 91 NY2d 434, 438 [1998]).

The criminal action commenced on September 26, 2005, when defendant appeared in Criminal Court on the desk appearance ticket. Defendant does not allege any speedy trial violation as to the assault-related counts. However, he argues that the time excludable from the assault-related charges is not excludable as to the theft-related charges.

As we have previously held,

“[w]e perceive no logical reason why, when a subsequent indictment is related back to the commencement of the proceeding for purposes of applying the six-month limitation prescribed by CPL 30.30 (1) (a), it should not also be related back for the purpose of computing the time to be excluded from that limitation” (People v Sinistaj, 67 NY2d 236, 239 [1986]).

We observed that the provisions of CPL 30.30 should be interpreted as an integrated whole and that applying only one part of the statute to a subsequent indictment would be contrary to that principle (see Sinistaj, 67 NY2d at 239-240). Since the parties agree that these charges are sufficiently related to require the same commencement date for speedy trial purposes, under the rationale of Sinistaj, they are sufficiently related to apply the same excludable time.

There is some question as to whether this indictment was “directly derived” from the initial accusatory instrument within the meaning of CPL 1.20 (16) (b). The term “directly derived” is not defined in the Criminal Procedure Law and we have determined that it should be accorded its plain meaning— specifically, whether the indictment can be traced to or originates from the prior accusatory instrument (see People v Osgood, 52 NY2d 37, 44 [1980]). Here, the indictment appears to satisfy that test because the charges, including the theft-based charges, originate from the prior accusatory instrument, incorporating the same physical injury component. However, it is unnecessary to make that determination in this case because, as noted above, if the charges are sufficiently related to apply the same commencement date, they are likewise sufficiently related for purposes of applying excludable time.

Nor would it benefit defendant if we were to determine that the indictment was not directly derived from the initial accusatory instrument. In that situation, the indictment would not relate back for the purpose of any speedy trial calculation, including determination of a commencement date (see Sinistaj, 67 NY2d at 241 n 4). In short, the speedy trial statute should be applied as a rational, integral whole.

Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed.

       The People concede that they have not preserved any argument that the theft-related charges would have a separate commencement date from the assault-related charges.


text:
    [944 NE2d 1137, 919 NYS2d 498]
    The People of the State of New York, Appellant, v James O. Boothe, Respondent.
    Argued January 5, 2011;
    decided February 24, 2011

      POINTS OF COUNSEL

      Andrew M. Cuomo, Attorney General, New York City (Hannah Stith Long, Barbara D. Underwood and Roseann B. MacKechnie of counsel), for appellant.
    Penal Law § 176.05 (2) read in light of the unambiguous legislative intent, added a new type of fraudulent insurance act to the conduct previously punishable as insurance fraud. (Carney v Philippone, 1 NY3d 333; Consedine v Portville Cent. School Dist., 12 NY3d 286; Matter of ATM One v Landaverde, 2 NY3d 472; Matter of Yolanda D., 88 NY2d 790; People v Santi, 3 NY3d 234; Matter of Pirro v Angiolillo, 89 NY2d 351; People v Versaggi, 83 NY2d 123; Matter of M.B., 6 NY3d 437.)

      Stillman, Friedman & Shechtman, P.C., New York City (Paul Shechtman and Daniel V. Shapiro of counsel), for respondent.
    James O. Boothe cannot be prosecuted for insurance fraud because he did not commit a “fraudulent insurance act.” (People v Ferone, 136 AD2d 282; Gillespie v Zittlosen, 60 NY 449; People v Briggs, 193 NY 457; Pavelic & LeFlore v Marvel Entertainment Group, Div. of Cadence Industries Corp., 493 US 120; People v Finnegan, 85 NY2d 53; Lamie v United States Trustee, 540 US 526; People v Versaggi, 83 NY2d 123; Sexauer & Lemke v Burke & Sons Co., 228 NY 341; People v Sansanese, 17 NY2d 302; People v Green, 68 NY2d 151.)
   OPINION OF THE COURT

Pigott, J.

Defendant, the chief operating officer and executive vice-president of a managed health care provider, was indicted on charges that included two counts of insurance fraud in the first degree (Penal Law § 176.30). A person is guilty of that offense “when he commits a fraudulent insurance act and thereby wrongfully takes, obtains or withholds, or attempts to wrongfully take, obtain or withhold property with a value in excess of one million dollars” (emphasis supplied). The indictment charges that defendant committed “fraudulent insurance act[s]” in 2003 when he submitted marketing plans to Medicaid that he knew contained materially false information.

As relevant here, Penal Law § 176.05 (1) provides that a person commits a “fraudulent insurance act” when he:

“knowingly and with intent to defraud presents . . . any written statement as part of, or in support of, an application for the issuance of, or the rating of a commercial insurance policy, . . . or a claim for payment or other benefit pursuant to an insurance policy . . . for commercial or personal insurance which he knows to: (i) contain materially false information concerning any fact material thereto.”

Prior to 1998, the above was the only definition contained in section 176.05, which is entitled “Insurance fraud; defined.” In 1998, however, the Legislature amended a number of state laws to expand health coverage and eligibility for children through the Child Health Plus program and Medicaid, and concomitantly amended the Penal Law to “strengthen[ ] the State’s ability to deter Medicaid fraud and abuse” (Budget Report on Bills, Bill Jacket, L 1998, ch 2, at 3). As part of these amendments, the Legislature added a new subdivision to section 176.05, namely, “fraudulent health care insurance act” which, as relevant here, a person commits when he:

“knowingly and with intent to defraud, presents . . . any written statement ... as part of, or in support of, an application for the issuance of a health insurance policy, or a policy or contract or other authorization that provides or allows coverage for, membership or enrollment in, or other services of a public or private health plan, or a claim for payment, services or other benefit pursuant to such policy, contract or plan, which he knows to:
“(a) contain materially false information concerning any material fact thereto” (Penal Law § 176.05 [2] [emphasis supplied]).

While amending section 176.05 in this fashion, the Legislature failed to amend the substantive offense provisions to include a “fraudulent health care insurance act.” Specifically, Penal Law §§ 176.10 through 176.35—which describe six degrees of insurance fraud—all contain the core requirement that the defendant “commit[ ] a fraudulent insurance act.” At the time, the State Division of Criminal Justice Services warned that the proposed amendments to section 176.05 “may not accomplish their apparent objective of including certain activities related to health care insurance within the scope of existing insurance fraud offenses” because the new legislation did not include “fraudulent health care insurance act” as an alternative means of committing the crimes spelled out in sections 176.10 through 176.35 (Letter from St of NY Div of Crim Justice Servs, July 9, 1998, Bill Jacket, L 1998, ch 2, at 32).

In the case before us, defendant, noting these deficiencies, moved to dismiss the insurance fraud counts, asserting that he did not commit a “fraudulent insurance act” as charged in the indictment and defined by the Penal Law. As relevant to this appeal, Supreme Court granted defendant’s motion and the Appellate Division affirmed (68 AD3d 402 [2009]). A Judge of this Court granted the People leave to appeal, and we now affirm.

A “fraudulent insurance act,” as defined by statute, is limited to certain defined commercial and personal insurance. In fact, the People concede that the marketing plans allegedly submitted by defendant do not fall under this definition. Rather, they argue that a “fraudulent health care insurance act” (emphasis supplied) is a “species” of “fraudulent insurance act,” and that section 176.05 (2) can be read as specifying an expanded set of “fraudulent insurance acts” relating to health care that are punishable under sections 176.10 through 176.35. We reject that contention.

Here, the Legislature plainly failed to criminalize the conduct at issue. This statutory infirmity cannot be overlooked, nor can it be remedied through statutory interpretation. It is well settled “that courts are not to legislate under the guise of interpretation” (People v Finnegan, 85 NY2d 53, 58 [1995], cert denied 516 US 919 [1995], citing People v Heine, 9 NY2d 925, 929 [1961]). If this deficiency is to be corrected, it must be done through legislative action, as the Legislature is better equipped to correct any deficiencies that might exist (see Bright Homes v Wright, 8 NY2d 157, 162 [1960]).

In fact, that is the precise action the Judicial Conference of the State of New York proposed in its 2003 Legislative Agenda report, noting that the Chief Administrative Judge, in accordance with his responsibilities set forth in Judiciary Law § 212 (1) (g), should “at the recommendation of his Advisory Committee on Criminal Law and Procedure, . . . recommend repair of this [legislative] oversight so that a fraudulent health care insurance act is included as a fraudulent insurance act and thereby constitutes a crime of insurance fraud” (Judicial Conference of the State of New York, The Judiciary’s 2003 Legislative Agenda, at 63-64 [Jan. 2003]). Because there has been no such repair, a “fraudulent health care insurance act” is not included within the definition of “fraudulent insurance act” and therefore defendant did not violate Penal Law § 176.30. Therefore, the order of the Appellate Division should be affirmed.

Judges Ciparick, Graffeo, Read, Smith and Jones concur; Chief Judge Lippman taking no part.

Order affirmed.


author: Smith, J. Ciparick, J. (dissenting).

text:
    [945 NE2d 439, 920 NYS2d 246]
    The People of the State of New York, Respondent, v David M. Harnett, Appellant.
    Argued January 6, 2011;
    decided February 10, 2011

      POINTS OF COUNSEL

      Brian M. Callahan, Duanesburg, for appellant.
    I. The trial court’s failure to advise appellant of the direct consequences of his plea, related to the Sex Offender Management and Treatment Act, resulted in a guilty plea which was not knowingly, intelligently and voluntarily entered. (People v Ford, 86 NY2d 397; People v Seaberg, 74 NY2d 1; People v Francabandera, 33 NY2d 429; People v Catu, 4 NY3d 242.) II. Fundamental fairness requires that a defendant be advised of consequences related to the Sex Offender Management and Treatment Act before entering a plea of guilty to a felony sex offense. (People v Catu, 4 NY3d 242.)

      Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.
    I. The potential for civil commitment under the Sex Offender Management and Treatment

      Act is a collateral consequence of a guilty plea to a sex offense. (People v Lopez, 6 NY3d 248; People v Seaberg, 74 NY2d 1; People v Ford, 86 NY2d 397; People v Catu, 4 NY3d 242; Matter of State of New York v Farnsworth, 75 AD3d 14; People v Gravino, 14 NY3d 546; Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745; People v Taylor, 60 AD3d 444, 12 NY3d 860; Steele v Murphy, 365 F3d 14; Cuthrell v Director, Patuxent Inst., 475 F2d 1364.) II. This Court should not adopt the “fundamental fairness” standard of State v Bellamy (178 NJ 127, 835 A2d 1231 [2003]). (Johnson v Rosemeyer, 117 F3d 104.) III. If fundamental fairness mandates reversal, the new rule should be applied prospectively. (People v Pepper, 53 NY2d 213; People v Sayers, 22 NY2d 571.)

      Derek Champagne, District Attorney, White Plains (Steven A. Bender, Morrie Kleinbart and Richard Longworth Hecht of counsel), for District Attorneys Association of the State of New York, amicus curiae.
    Sex Offender Management and Treatment Act is a collateral, not direct, consequence of a conviction; thus, a trial court’s failure pre-plea to advise a defendant of the future possibility of civil confinement or supervision does not, alone, undermine an otherwise voluntary, knowing and intelligent guilty plea. (People v Gravino, 14 NY3d 546; People v Ford, 86 NY2d 397; People v Harris, 61 NY2d 9; Boykin v Alabama, 395 US 238; Cuthrell v Director, Patuxent Inst., 475 F2d 1364, 414 US 1005; Brady v United States, 397 US 742; People v Catu, 4 NY3d 242; Matter of State of New York v Farnsworth, 75 AD3d 14; Kansas v Hendricks, 521 US 346; Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745.)

      New York Civil Liberties Union Foundation, New York City (Andrew L. Kalloch, Katharine E.S. Bodde, Corey Stoughton, Christopher Dunn and Arthur Eisenberg of counsel), for New York Civil Liberties Union, amicus curiae.
    I. The history of sex offender regulation shows a clear trend toward more onerous consequences. II. This Court’s decision in People v Gravino (14 NY3d 546 [2010]) and the Supreme Court’s decision in Padilla v Kentucky (559 US —, 130 S Ct 1473 [2010]) reject a formulaic application of the direct/collateral consequences doctrine, and instruct courts to scrutinize the practical effects of said consequences. (People v Catu, 4 NY3d 242; People v Ford, 86 NY2d 397; Boykin v Alabama, 395 US 238.) III. Because the threat of lifelong civil commitment is an extraordinarily severe consequence of a criminal conviction, the failure of a court to notify a defendant of that threat violates defendant’s right to due process. (People v Gravino, 14 NY3d 546; People v Catu, 4 NY3d 242; Foucha v Louisiana, 504 US 71; United States v Salerno, 481 US 739; DeShaney v Winnebago County Dept. of Social Servs., 489 US 189; Kansas v Hendricks, 521 US 346; Addington v Texas, 441 US 418; Morrissey v Brewer, 408 US 471; United States v Gordon, 156 F3d 376; Shiwlochan v Portuondo, 345 F Supp 2d 242.)

      Alfred O’Connor, Albany, for New York State Defenders Association, amicus curiae.
    Because discretionary sentencing decisions affect or influence the likelihood of subsequent sex offender civil management, a severe ramification of a felony conviction and sentence, criminal court judges should be required to advise defendants about Mental Hygiene Law article 10 when accepting guilty pleas to qualifying offenses. (People v Ford, 86 NY2d 397; People v Gravino, 14 NY3d 546; People v Hoti, 12 NY3d 742; Kansas v Crane, 534 US 407; People v Catu, 4 NY3d 242; Smith v Doe, 538 US 84; Kansas v Hendricks, 521 US 346; United States v Ursery, 518 US 267; Matter of State of New York v J.A., 21 Misc 3d 806; Matter of George L., 85 NY2d 295.)
   OPINION OF THE COURT

Smith, J.

We hold that failing to warn a defendant who pleads guilty to a sex offense that he may be subject to the Sex Offender Management and Treatment Act (SOMTA) does not automatically invalidate the guilty plea.

I

Defendant pleaded guilty to sexual abuse in the first degree, consisting of sexual contact with a person under 11 years old (Penal Law § 130.65 [3]). During the plea allocution, defendant was told that he would be sentenced to seven years in prison, with a period of postrelease supervision to be set by the court between 3 years and 10 years; that he would be subject to an order of protection for 15 years; and that he would be required to register as a sex offender. No mention was made of SOMTA (Mental Hygiene Law § 10.01 et seq.).

Defendant did not move, either before or after sentence, to withdraw his plea. After being sentenced, however, he appealed to the Appellate Division, arguing that his plea was not knowing, voluntary and intelligent because he had not been warned of its possible consequences under SOMTA. The Appellate Division affirmed, with two Justices dissenting (72 AD3d 232 [2010]). A Justice of the Appellate Division granted leave to appeal, and we now affirm.

II

We begin by describing the consequences under SOMTA that could result from defendant’s plea.

Defendant’s conviction and incarceration made him a “detained sex offender” subject to SOMTA (Mental Hygiene Law § 10.03 [g]). That status becomes significant as the end of an offender’s prison term approaches. When a detained sex offender “is nearing an anticipated release,” a notice to that effect is given to the Attorney General and the Commissioner of Mental Health (Mental Hygiene Law § 10.05 [b]). The offender’s case is then reviewed by Office of Mental Health (OMH) staff and, if the staff finds further action appropriate, by a three member “case review team” including qualified professionals (Mental Hygiene Law § 10.05 [a], [d]). The case review team must “consider whether the respondent is a sex offender requiring civil management,” and if it finds that he is it give notice both to the offender and to the Attorney General (Mental Hygiene Law § 10.05 [e], [g]).

The Attorney General then decides whether to file a “sex offender civil management petition” in court (Mental Hygiene Law § 10.06 [a]). If he does so, a series of proceedings follows, including a hearing without a jury on whether there is “probable cause to believe” that the person in question is “a sex offender requiring civil management” (Mental Hygiene Law § 10.06 [g]) and a jury trial at which the jury decides whether the offender “suffers from a mental abnormality” (Mental Hygiene Law § 10.07 [a]). A person found to be a detained sex offender who suffers from a mental abnormality must be classified by the court as either “a dangerous sex offender requiring confinement” or “a sex offender requiring strict and intensive supervision” (Mental Hygiene Law § 10.07 [f]). A detained sex offender in the former category “shall be committed to a secure treatment facility . . . until such time as he or she no longer requires confinement” (id.).

SOMTA was enacted in 2007. A 2010 report by the Attorney General provides some information on how it has worked in practice (New York State Office of the Attorney General, A Report on the 2007 Law that Established Civil Management for Sex Offenders in New York State [Apr. 13, 2010], available at http://www.ag.ny.gov/bureaus/sexual_offender/pdfs/ April%202010%20Yearly%20Report.pdf). The report says that, during SOMTA’s first three years, OMH screened 4,399 new cases, of which 383 were ultimately referred for litigation. As of the date of the Attorney General’s report, 123 people had been committed to a secure facility under SOMTA. In 79 cases, an outpatient regime of strict and intensive supervision and treatment was imposed, and litigation was continuing in a number of other cases. Making allowance for the cases still in the pipeline, it seems that, at most, about six percent of those detained sex offenders whose cases came up in the first three years were or were likely to be subjected to civil commitment.

Ill

Defendant argues that the failure to advise him of the SOMTA consequences of his conviction invalidated his plea because (1) they are direct consequences of the plea, and (2) whether direct or collateral, they are so important that their nondisclosure rendered the plea proceedings fundamentally unfair. Defendant’s first argument is plainly without merit. The second raises a serious question, but does not justify the result—automatic invalidation of the plea—that defendant seeks.

Direct versus Collateral Consequences

Our cases have drawn a line between the direct and collateral consequences of a plea (see People v Ford, 86 NY2d 397 [1995]; People v Catu, 4 NY3d 242 [2005]; People v Gravino, 14 NY3d 546 [2010]). The importance of the distinction is that a trial court “must advise a defendant of the direct consequences” (Catu, 4 NY3d at 244 [emphasis added]). A court’s failure to comply with that obligation “requires reversal” because harmless error analysis is inapposite (id. at 245). The possibility of supervision or confinement under SOMTA is clearly on the collateral side of the line.

Direct consequences, as we explained in Ford, are those that have “a definite, immediate and largely automatic effect on defendant’s punishment” (86 NY2d at 403). Consequences that are “peculiar to the individual’s personal circumstances and . . . not within the control of the court system” have been held to be collateral (id.). The direct consequences of a plea—those whose omission from a plea colloquy makes the plea per se invalid—are essentially the core components of a defendant’s sentence: a term of probation or imprisonment, a term of post-release supervision, a fine. Our cases have identified no others. We held in Ford and Gravino that consequences that may be quite serious—possible deportation in Ford, Sex Offender Registration Act (SORA) requirements and onerous terms of probation in Gravino—are collateral.

These decisions compel a holding that SOMTA consequences are collateral also. Indeed, Gravino is indistinguishable here, for all the factors that led us to hold SORA registration a collateral consequence apply equally, or a fortiori, to SOMTA. SOMTA, like SORA, is not a penal statute designed to punish a past crime, but a remedial one designed to prevent a future crime (see Gravino, 14 NY3d at 556); with SOMTA, as with SORA, important decisions and recommendations must be made, after the time of the guilty plea, by administrative agencies not under the court’s control (see id.); and with SOMTA, even more than with SORA, the consequences of a defendant’s plea are far from automatic. Indeed, experience to date indicates that the large majority of people who are “detained sex offenders” as SOMTA defines the term will suffer no consequences from that designation at all.

Fairness

Defendant’s stronger argument is that SOMTA consequences, whether collateral or not, are simply too important to be left out of a plea allocution. He relies primarily on a New Jersey case, State v Bellamy (178 NJ 127, 835 A2d 1231 [2003]).

The facts of Bellamy did indeed raise serious fairness questions. Bellamy pleaded guilty to a sex crime in exchange for the State’s agreement to recommend an 18-month jail sentence. When he pleaded, he had already served a significant part of that time; when sentenced, he was scheduled to be released in a bit more than two months. But a week before his release date the New Jersey Attorney General began a proceeding under the New Jersey Sexually Violent Predator Act that resulted in Bellamy’s commitment. At the time of the New Jersey Supreme Court’s decision three years later, he was still incarcerated.

These facts form the background for the Bellamy court’s holding “that fundamental fairness requires that prior to accepting a plea to a predicate offense, the trial court must inform a defendant of the possible consequences under the [Sexually Violent Predator] Act” (178 NJ at 131, 835 A2d at 1234). That holding, however, did not lead automatically to the nullification of Bellamy’s plea. Rather, the court remanded the case to permit a motion for plea withdrawal, which it said should be granted “[i]f the trial court is satisfied that defendant did not understand the consequences of his plea” (178 NJ at 140, 835 A2d at 1239).

Certainly, if facts like those of Bellamy were before us, the argument that the plea was involuntary would have to be taken seriously. And to avoid the possibility that such cases will arise, we recommend to trial courts that the possible effects of SOMTA be explained to anyone pleading guilty to an offense that may result in SOMTA proceedings. We are not prepared to hold, however, that every failure to make such an explanation entitles the defendant to take his plea back.

There is no indication in this record that this defendant’s situation is like Bellamy’s. It is not asserted that this defendant has been made the subject of a SOMTA proceeding, and we cannot tell on this record whether there is or ever was any significant likelihood that that would occur. As we made clear in Gravino, where collateral consequences of a plea are an issue, claims that a nondisclosure rendered the plea involuntary are best evaluated on a case by case basis, in the context of a motion by a defendant to withdraw his plea.

We said in Gravino that “[t]here may be cases in which a defendant can show that he pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed” (14 NY3d at 559). We observed that such cases would be “rare,” because “in the vast majority of plea bargains the overwhelming consideration for the defendant is whether he will be imprisoned and for how long” (id.). But since SOMTA consequences can include extended confinement, a plea made in ignorance of such consequences may sometimes be proved involuntary—if a defendant can show that the prospect of SOMTA confinement was realistic enough that it reasonably could have caused him, and in fact would have caused him, to reject an otherwise acceptable plea bargain. Of course, in such cases the defendant will have to prove that he did not know about SOMTA—i.e., that his lawyer did not tell him about it—before he pleaded guilty. Thus, the issue of whether the plea was voluntary may be closely linked to the question of whether a defendant received the effective assistance of counsel (cf. Padilla v Kentucky, 559 US —, 130 S Ct 1473 [2010]).

This defendant has not moved to withdraw his plea. On this record, we do not know either whether his lawyer told him about SOMTA or whether, considering the facts of defendant’s situation, SOMTA would have been a significant factor in the evaluation of a plea bargain. In short, defendant has not made the factual showing that would justify plea withdrawal. He is therefore not entitled to relief on this appeal.

Accordingly, the order of the Appellate Division should be affirmed.

Ciparick, J. (dissenting).

Because I believe that civil confinement under the Sex Offender Management and Treatment Act (SOMTA) is so grave a deprivation of liberty that a plea should not be considered knowing and voluntary unless the defendant is aware of it, I respectfully dissent.

Once again we are confronted with deciding whether a consequence of a plea should be considered direct or collateral. In People v Gravino (14 NY3d 546 [2010]), we held that Sex Offender Registration Act (SORA) registration is a collateral consequence of a sex offense conviction. It is well settled that a direct consequence is one with a “definite, immediate and largely automatic effect on a defendant’s punishment” (Gravino, 14 NY3d at 554, quoting People v Ford, 86 NY2d 397, 403 [1995] [brackets omitted]). We determined in Gravino that SORA registration is collateral because it is nonpenal and its specific consequences will vary by defendant (see id. at 556-557). The same is true for SOMTA eligibility.

I dissented in Gravino on the ground that because imposition of SORA registration is mandatory and known at the time of the plea, it ought to be considered a direct consequence of that plea (see id. at 561 [Ciparick, J., dissenting]). This rationale likewise applies to defendant’s automatic eligibility for SOMTA review. All defendants convicted of sexual abuse in the first degree and sentenced to a prison term are “detained sex offenders” under SOMTA (Mental Hygiene Law § 10.03 [g]). The statute requires that the Attorney General and Commissioner of Mental Health receive notice of a detained sex offender’s scheduled release date and provides the authority to take further action towards civil management, if warranted (Mental Hygiene Law § 10.05 [b], [d], [e], [g]; § 10.06 [a]). Nevertheless, I acknowledge that following our holding in Gravino, SOMTA review must be considered a collateral consequence.

Under most circumstances, this would end our analysis, since a court’s failure to warn a defendant of collateral consequences generally does not merit withdrawal of a plea (see People v Catu, 4 NY3d 242, 244 [2005]). Here, however, we are confronted with a consequence that, though technically nonpenal and not applied to every defendant, may result in a period of confinement lengthier than a defendant’s prison sentence (see Mental Hygiene Law § 10.07 [f]; § 10.09 [a], [h]; § 10.10 [a]). In this sense, as the Appellate Division dissent noted, “it constitutes a potentially greater deprivation of liberty than the criminal sentence imposed,” and is closer to a direct consequence than those traditionally considered collateral (People v Harnett, 72 AD3d 232, 236 [3d Dept 2010]).

A trial court has a constitutional obligation to ensure that a defendant has a “full understanding of what the plea connotes and its consequences” (Ford, 86 NY2d at 402-403). “[D]ue process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (id. at 403 [internal quotation marks omitted]). While a trial court generally has no obligation to inform a defendant of collateral consequences, regardless of their severity (see Gravino, 14 NY3d at 556-557), I believe a defendant cannot be said to knowingly and voluntarily forgo his right to trial if he does not know the full extent of confinement that might result from his conviction. “Freedom from bodily restraint [is] at the core of the liberty protected by the Due Process Clause” (Foucha v Louisiana, 504 US 71, 80 [1992]). Moreover, “in the vast majority of plea bargains the overwhelming consideration for the defendant is whether he will be imprisoned and for how long” (Gravino, 14 NY3d at 559).

Although SOMTA confinement follows a separate administrative evaluation, probable cause hearing, and jury trial, it is the initial conviction that determines a defendant’s eligibility for that evaluative process. Even the majority here “recommend[s] to trial courts that the possible effects of SOMTA be explained to anyone pleading guilty to an offense that may result in SOMTA proceedings” (majority op at 207). The dissent below and the Supreme Court of New Jersey have aptly noted that where, as here, a potential consequence of a plea is confinement well beyond the penal sentence, fundamental fairness requires the defendant’s knowledge of that consequence (see State v Bellamy, 178 NJ 127, 139, 835 A2d 1231, 1238 [2003]; Harnett, 72 AD3d at 237).

As the majority observes, a defendant who has pleaded guilty in ignorance of a collateral consequence may successfully move to withdraw his plea upon making an individualized showing that he would not have so pleaded had he been aware of the consequence (Gravino, 14 NY3d at 559). Treating SOMTA eligibility as a standard collateral consequence, the majority finds the record on this appeal insufficient to support defendant’s claim, since he has failed to show that any SOMTA proceeding has been or is likely to be brought against him, his ignorance of SOMTA at the time of the plea, and that it would have impacted his decision to plead guilty (majority op at 207). In my view, defendant should be given an opportunity to put before County Court in a motion to withdraw his plea or other appropriate motion the specifics which are lacking in this record.

By pleading guilty, defendant exposed himself to the possibility that he would be confined after expiration of his prison sentence, perhaps indefinitely. County Court should have confirmed defendant’s awareness of that fact before accepting his guilty plea. Thus, I would remit to County Court to allow defendant to move to withdraw his plea.

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

Order affirmed.

       The majority’s calculation that, at most, approximately six percent of sex offenders screened under SOMTA during its first three years were civilly committed is beside the point (majority op at 205); any chance that a defendant will face further confinement as a result of his plea should be made known to him at the time the plea is taken.


author: Ciparick, J.

text:
    [944 NE2d 1111, 919 NYS2d 472]
    Kristi Foote et al., Respondents, v Albany Medical Center Hospital et al., Appellants, et al., Defendant.
    Argued January 4, 2011;
    decided February 15, 2011

      POINTS OF COUNSEL

      Heidell, Pittoni, Murphy & Bach, LLP, New York City (Daniel S. Ratner and Daryl Paxson of counsel), Petrone & Petrone, P.C., Buffalo, for Birth & Beyond Midwifery Practice of Oneonta, PLLC and another, Maynard, O’Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for Albany Medical Center Hospital and others and Brown & Tarantino, LLC, White Plains (Katherine W. Dandy of counsel), for Brian S. Evanczyk and another, appellants.
    I. Defendants were entitled to summary judgment because plaintiffs did not establish an increased financial obligation arising from the extraordinary medical treatment needed for their son. (Becker v Schwartz, 46 NY2d 401; Park v Chessin, 46 NY2d 401; Johnson v Yeshiva Univ., 42 NY2d 818; Alquijay v St. Luke’s-Roosevelt Hosp. Ctr., 63 NY2d 978; O’Toole v Greenberg, 64 NY2d 427; Deobold v Oppermann, 111 NY 531; Bani-Esraili v Lerman, 69 NY2d 807; Inchaustegui v 666 5th Ave. Ltd. Partnership, 96 NY2d 111; Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81; Kihl v Pfeffer, 47 AD3d 154.) II. Plaintiffs should be limited to recovering their reasonable and necessary expenses incurred in raising their disabled child, not for “optimal” care. Dr. Carfi’s otherwise conclusory and speculative opinion did not establish a triable issue of fact. (Martin v Dierck Equip. Co., 43 NY2d 583; Becker v Schwartz, 46 NY2d 401; Askey v Occidental Chem. Corp., 102 AD2d 130;
      DuPont v State of New York, 19 Misc 3d 1144[A], 2008 NY Slip Op 51160[U]; Romano v Stanley, 90 NY2d 444; Di Sanza v City of New York, 11 NY3d 766; Franchini v Palmieri, 1 NY3d 536; Diaz v New York Downtown Hosp., 99 NY2d 542; Frey v Chester E. Smith & Sons, Inc., 751 F Supp 1052; Caruso v LeFrois Bldrs., 217 AD2d 256.)

      Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for respondents.
    I. Plaintiffs have properly pleaded a wrongful birth cause of action and the existence of sources of compensation pursuant to applicable government programs for their damages recoverable for its successful prosecution does not, as a matter of law, require its dismissal. (Becker v Schwartz, 46 NY2d 401; Park v Chessin, 46 NY2d 401; Bani-Esraili v Lerman, 69 NY2d 807; Miller v Rivard, 180 AD2d 331; Alquijay v St. Luke’s-Roosevelt Hosp. Ctr., 63 NY2d 978; Ciceron v Jamaica Hosp., 264 AD2d 497; Sorkin v Lee, 78 AD2d 180; Inchaustegui v 666 5th Ave. Ltd. Partnership, 96 NY2d 111; Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81; O’Toole v Greenberg, 64 NY2d 427.) II. Plaintiffs may obtain as damages their increased financial obligations arising from the extraordinary medical care and treatment due their child that defendants necessitated even if governmental assistance programs will provide for that care and treatment. (Becker v Schwartz, 46 NY2d 401; Kuppersmith v Dowling, 93 NY2d 90; Oxenhorn v Fleet Trust Co., 94 NY2d 110; Cricchio v Pennisi, 90 NY2d 296; Calvanese v Calvanese, 93 NY2d 111; Matter of Cooke Ctr. for Learning & Dev. v Mills, 19 AD3d 834; Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v Rowley, 458 US 176; Matter of Fogel v Perales, 135 AD2d 884, 71 NY2d 802; Andree ex rel. Andree v County of Nassau, 311 F Supp 2d 325; Inchaustegui v 666 5th Ave. Ltd. Partnership, 96 NY2d 111.) III. Assuming, arguendo, that plaintiffs’ cause of action for their extraordinary expenses may be dismissed if the pertinent government programs available for their child’s medically necessary extraordinary care and treatment will fund this care and treatment, defendants’ summary judgment motions must be denied as defendants’ proof failed to establish, as it must, that these programs will in fact completely fund such care and treatment; or, alternatively, plaintiffs’ proof sufficed to raise a triable issue of fact that their child’s medically necessary care and treatment would not be entirely funded by these programs. (Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Wiwigac v Snedaker, 282 AD2d 801; Offman v Singh, 27 AD3d 284; South v K-Mart

      Corp., 24 AD3d 748; Diaz v New York Downtown Hosp., 99 NY2d 542; Hranek v United Methodist Homes of Wyo. Conference, 27 AD3d 879.)
   OPINION OF THE COURT

Ciparick, J.

Plaintiffs Kristi Foote and Tim Sheridan are the parents of a child born in August 2003 with Joubert Syndrome, a neurological disorder causing abnormalities in brain development and function and resulting in developmental and behavioral deficits. After the child’s birth, plaintiffs commenced this medical malpractice “wrongful birth” action (see Becker v Schwartz, 46 NY2d 401, 409 [1978]) against numerous medical providers who allegedly failed to detect and/or failed to inform them of the abnormal cerebellar development of the fetus. Plaintiffs allege that steps would have been taken to terminate the pregnancy had they been properly informed. They seek damages for the extraordinary expenses involved in caring for their severely disabled child, including medical treatment and supplies, surgical treatment, physical therapy, vision therapy, occupational therapy, a home health aide, and special educational services.

Defendants moved for summary judgment dismissing the complaint, submitting expert affidavits stating that the extraordinary expenses necessary for the child’s care have been and will continue to be completely covered by certain enumerated governmental programs. In opposition to defendants’ motion, plaintiffs submitted the affirmation of Dr. Joseph Carfi, M.D., who prepared a “life care plan” and report detailing the care required for the child. According to Dr. Carfi, the government programs referenced by defendants’ experts provided only a “minimum level of services” so as to create a “basic floor of opportunity.” Dr. Carfi also took the position that “optimal care” for the child required more services than those provided by government programs and, as a result, plaintiffs had or would be forced to bear out-of-pocket expenses related to the child’s special medical and educational needs. Supreme Court granted defendants’ motion for summary judgment, concluding that plaintiffs had failed to raise a triable issue of fact as to whether they had or would incur extraordinary expenses in providing for the medical and educational care of their son (19 Misc 3d 1142[A], 2008 NY Slip Op 51138[U]).

On plaintiffs’ appeal, the Appellate Division unanimously reversed (see Foote v Albany Med. Ctr. Hosp., 71 AD3d 25 [3d Dept 2009]). Although it agreed that most of plaintiffs’ expenses in caring for the child had been and would continue to be covered under government programs, the Appellate Division concluded that the aid received by plaintiffs for such programs would, under the statutory collateral source rule, merely serve to offset any award of damages made after trial (see id. at 28). The Appellate Division also concluded that Dr. Carfi’s “affirmation, report and life-care plan, which distinguish between the ‘basic floor’ of services provided by public education and the level necessary to meet all of the son’s needs, [were] sufficient to raise a question of fact” for trial (id.). Because Supreme Court had not considered defendants’ alternative basis for summary judgment—that plaintiffs could not establish a deviation from the applicable standard of medical care—the Appellate Division remitted for consideration of that issue.

The Appellate Division granted defendants leave to appeal and certified a question inquiring whether it erred, “as a matter of law, in reversing . . . the order of the Supreme Court. . . and remitting the matter to Supreme Court for further proceedings.” We now affirm and answer the certified question in thé negative.

In Bani-Esraili v Lerman (69 NY2d 807 [1987]), we explained that, in a “wrongful birth” action, the parents’ “legally cognizable injury” is “the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority” (id. at 808; see also Alquijay v St. Luke’s-Roosevelt Hosp. Ctr., 63 NY2d 978, 979 [1984]; Becker, 46 NY2d at 413). Here, the Appellate Division properly concluded that defendants’ motion for summary judgment should have been denied. Dr. Carfi’s life care plan, report and affirmation are sufficient to demonstrate the existence of a triable factual issue whether plaintiffs have or will incur extraordinary financial obligations relating to the care of their son. In particular, a question of fact exists whether there is a difference between the resources provided by government programs and the extraordinary medical and other treatment or services necessary for the child during minority. We thus agree with the Appellate Division that “[t]he existence of government programs . . . will not, as a matter of law, eliminate plaintiffs’ financial obligation for their son’s extraordinary medical and educational expenses” (Foote, 71 AD3d at 29 [citations omitted]).

In light of our conclusion, we need not reach and express no opinion about the additional ground for denial of the motion for summary judgment, set forth by the Appellate Division, that, pursuant to the statutory collateral source rule (see CPLR 4545 [a]), “the availability of another source of compensation does not obviate” plaintiffs’ injury but, instead, can only offset any damages awarded after trial (Foote, 71 AD3d at 28). That issue, along with issues pertaining to liens, if any, and the underlying medical malpractice issues remain open for consideration by Supreme Court.

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

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

Order affirmed, etc.