author: Read, J.

text:
    [903 NE2d 265, 874 NYS2d 868]
    Vivia Amalfitano et al., Respondents, v Armand Rosenberg, Appellant.
    Argued January 6, 2009;
    decided February 12, 2009

      POINTS OF COUNSEL

      Scheichet & Davis, P.C., New York City (William J. Davis of counsel), for appellant.
    Judiciary Law § 487 requires the elements of fraud or deceit for a civil action, which do not include an “attempt.” (Barclay Arms v Barclay Arms Assoc., 74 NY2d 644; Niagara Mohawk Power Corp. v Testone, 272 AD2d 910; People v Oishei, 20 Misc 163; New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78; O’Connor v Dime Sav. Bank of N.Y., 265 AD2d 313; Werner v Katal Country Club, 234 AD2d 659; Manna v Ades, 237 AD2d 264.)

      Llorca & Hahn LLP, New York City (Richard E. Hahn of counsel), for respondents.
    I. A lawsuit for treble damages may be maintained under Judiciary Law § 487 based upon an attempted but unsuccessful deceit upon a court. (Looff v Lawton, 97 NY 478; Kuelling v Roderick Lean Mfg. Co., 183 NY 78; Aymes v Gateway Demolition Inc., 30 AD3d 196; Barclay Arms v Barclay Arms Assoc., 74 NY2d 644; People v Oishei, 20 Misc 163; New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78; O’Connor v Dime Sav. Bank of N.Y., 265 AD2d 313; Werner v Katal Country Club, 234 AD2d 659; Carney v Philippone, 1 NY3d 333; Matter of Colonial Liq. Distribs. v O’Connell, 295 NY 129.) II. The costs incurred in defending a suit predicated on a materially and intentionally false fundamental misrepresentation are recoverable under Judiciary Law § 487 even if the court never acted on the belief that the misrepresentation was true. (Country-Wide Ins. Co. v National R.R. Passenger Corp., 6 NY3d 172; Retail Software Servs. v Lashlee, 71 NY2d 788; Yesil v Reno, 92 NY2d 455; Aymes v Gateway Demolition Inc., 30 AD3d 196; Kaplan v Democrat & Chronicle, 266 AD2d 848.) III. Armand Rosenberg’s filing of the complaint falsely alleging standing when none existed and the subsequent submission of knowingly and materially false affidavits did work a deceit on the court, and therefore the certified questions should be altered accordingly. (Matter of Schildhaus, 23 AD2d 152; Schindler v Issler & Schrage, 262 AD2d 226; Guardian Life Ins. Co. of Am. v Handel, 190 AD2d 57; Salovaara v Eckert, 222 F3d 19.) IV Answering the questions certified in the affirmative will not “open the floodgates to litigation.” (Enright v Eli Lilly & Co., 11 NY2d 377.) V. Any negative answer to certified question No. 2 should be limited to the issue of expenses incurred by Vivia and Gerald Amalfitano prior to the appeal on which the Appellate Division was found to have been actually defrauded, because this Court would exceed its jurisdiction if it also considered matters already decided by the Second Circuit which granted recovery with respect to expenses incurred after the appeal, through discovery and trial.

      Jeffrey A. Jannuzzo, New York City, for James L. Melcher, amicus curiae.
    The 28 other statutes that disjunctively employ the term “deceit” establish that it is distinct from “fraud.” (Matter of Bliss v Bliss, 66 NY2d 382; Rangolan v County of Nassau, 96 NY2d 42; Matter of Tonis v Board of Regents of Univ. of State of N.Y., 295 NY 286; Matter of Gerald R.M., 12 AD 3d 1192; McSweeney v Bazinet, 269 App Div 213, 295 NY 797; Fleming v Graham, 10 NY3d 296.)
   OPINION OF THE COURT

Read, J.

The United States Court of Appeals for the Second Circuit has certified two questions to us regarding the application of section 487 of the Judiciary Law insofar as it provides that

“[a]n attorney or counselor who: . . .
“[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . .
“[i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.”

The questions arise out of defendant Armand Rosenberg’s appeal from a judgment of the United States District Court for the Southern District of New York, finding that Rosenberg violated section 487 and awarding plaintiffs Vivia and Gerard Amalfitano three times their costs to defeat a lawsuit brought by Rosenberg on behalf of Peter Cosíalas (Amalfitano v Rosenberg, 428 F Supp 2d 196 [SD NY 2006]). The lawsuit accused the Amalfitanos of fraudulently purchasing what remained of the Cosíalas family business, a partnership known as 27 Whitehall Street Group. On appeal, the Second Circuit concluded that it could affirm the District Court’s judgment “in its entirety” only if, in addition to Rosenberg’s actual deceit of the Appellate Division, his “attempted deceit” of the trial court—“the false allegations in the complaint in the Cosíalas litigation” representing that Peter Cosíalas was a partner in 27 Whitehall Street Group— would “support[ ] a cause of action under section 487 and was the proximate cause of the Amalfitanos’ damages in defending the litigation from its inception” (Amalfitano v Rosenberg, 533 F3d 117, 125 [2d Cir 2008]).

I.

Certified Question No. 1

“Can a successful lawsuit for treble damages brought under N.Y. Jud. Law § 487 be based on an attempted but unsuccessful deceit?” (533 F3d at 126.)

Rosenberg equates forfeiture under Judiciary Law § 487 with a tort claim for fraud. And under New York common law, “[t]o maintain an action based on fraudulent representations ... in tort for damages, it is sufficient to show that the defendant knowingly uttered a falsehood intending to deprive the plaintiff of a benefit and that the plaintiff was thereby deceived and damaged” (Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 406-407 [1958] [emphasis added]). Thus, Rosenberg argues, section 487 does not permit recovery for an attempted but unsuccessful deceit practiced on a court. And here, the trial judge was concededly never fooled by misrepresentations regarding Peter Cosíalas’s partnership status.

As the District Court correctly observed, however, Judiciary Law § 487 does not derive from common-law fraud. Instead, as the Amalfitanos point out, section 487 descends from the first Statute of Westminster, which was adopted by the Parliament summoned by King Edward I of England in 1275. The relevant provision of that statute specified that

“if any Serjeant, Pleader, or other, do any manner of Deceit or Collusion in the King’s Court, or consent [unto it,] in deceit of the Court [or] to beguile the Court, or the Party, and thereof be at-tainted, he shall be imprisoned for a Year and a Day, and from thenceforth shall not be heard to plead in [that] Court for any Man; and if he be no Pleader, he shall be imprisoned in like manner by the Space of a Year and a Day at least; and if the Trespass require greater Punishment, it shall be at the King’s Pleasure” (3 Edw, ch 29; see generally Thomas Pitt Taswell-Langmead, English Constitutional History, at 153-154 [Theodore ET. Plucknett ed, Sweet & Maxwell, 10th ed 1946]).

Five centuries later, in 1787, the Legislature adopted a law with strikingly similar language, and added an award of treble damages, as follows:

“And be it further enacted . . . [t]hat if any counsellor, attorney, solicitor, pleader, advocate, proctor, or other, do any manner of deceit or collusion, in any court of justice, or consent unto it in deceit of the court, or to beguile the court or the party, and thereof be convicted, he shall be punished by fine and imprisonment and shall moreover pay to the party grieved, treble damages, and costs of suit” (L 1787, ch 35, § 5).

In 1830, the Legislature carried forward virtually identical language in the Revised Statutes of New York, prescribing that

“[a]ny counsellor, attorney or solicitor, who shall be guilty of any deceit or collusion, or shall consent to any deceit or collusion, with intent to deceive the court or any party, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by fine or imprisonment, or both, at the discretion of the court. He shall also forfeit to the party injured by his deceit or collusion, treble damages, to be recovered in a civil action” (2 Rev Stat of NY, part III, ch III, tit II, art 3, § 69, at 215-216 [2d ed 1836]).

The Legislature later codified this misdemeanor crime and the additional civil forfeiture remedy as section 148 of the Penal Code of 1881, providing that

“[a]n attorney or counselor who . . .
“[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party as prohibited by section 70 of the Code of Civil Procedure; . . .
“[i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by this Code, he forfeits to the party injured treble damages, to be recovered in a civil action” (L 1881, ch 676, § 148 [1]).

Section 70 of the Code of Civil Procedure, cross-referenced in section 148, similarly stated that “[a]n attorney or counsellor, who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or a party, forfeits, to the party injured by his deceit or collusion, treble damages. He is also guilty of a misdemeanor.” The derivation note accompanying section 70 includes the following comment: “As to the meaning of the word, ‘deceit’, as used in this section, see Looff v. Lawton, 14 Hun, 588” (Code of Civil Procedure of the State of New York with Notes by Montgomery H. Throop [Weed, Parsons and Company 1881]).

In Looff, the plaintiffs accused their attorney of gulling them into bringing an unnecessary lawsuit, motivated solely by his desire to collect a large fee to represent them. In discussing the meaning of the word “deceit” in section 70 (and, by extension, section 148), the General Term of the Supreme Court opined that the Legislature intended an expansive reading rather than “confining the term to common law or statutory cheats” (Looff v Lawton, 14 Hun 588, 589 [2d Dept 1878]). To support this interpretation, the court reasoned that because there was already a civil action at common law for fraud and damage that an injured party might pursue,

“[t]here was no occasion . . . for another statute to punish, or to give an action for the ‘deceit’ of lawyers, unless the Legislature intended that that class of persons should be liable for acts which would be insufficient to establish a crime or a cause of action against citizens generally. The statute is limited to a peculiar class of citizens, from whom the law exacts a reasonable degree of skill, and the utmost good faith in the conduct and management of the business intrusted to them ... To mislead the court or a party is to deceive it; and, if knowingly done, constitutes criminal deceit under the statute cited” (id. at 590).

Section 148 was subsequently recodified as section 273 of the Penal Law of 1909. In conjunction with the Legislature’s adoption of the revised Penal Law of 1965, section 148 was transferred from the Penal Law to the Judiciary Law as section 487 (see L 1965, ch 1031, § 123). There it remains today—the modern-day counterpart of a statute dating from the first decades after Magna Carta; its language virtually (and remarkably) unchanged from that of a law adopted by New York’s Legislature two years before the United States Constitution was ratified.

As this history shows, section 487 is not a codification of a common-law cause of action for fraud. Rather, section 487 is a unique statute of ancient origin in the criminal law of England. The operative language at issue—“guilty of any deceit”—focuses on the attorney’s intent to deceive, not the deceit’s success. And as the District Court pointed out, section 487 was for many years placed in the state’s penal law, which “supports the argument that the more appropriate context for analysis is not the law applicable to comparable civil torts but rather criminal law, where an attempt to commit an underlying offense is punishable as well [as] the underlying offense itself’ (Amalfatino, 428 F Supp 2d at 210). Further, to limit forfeiture under section 487 to successful deceits would run counter to the statute’s evident intent to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function.

II.

Certified Question No. 2

“In the course of such a lawsuit, may the costs of defending litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true?” (533 F3d at 126.)

In light of our answer to the first question, recovery of treble damages under Judiciary Law § 487 does not depend upon the court’s belief in a material misrepresentation of fact in a complaint. When a party commences an action grounded in a material misrepresentation of fact, the opposing party is obligated to defend or default and necessarily incurs legal expenses. Because, in such a case, the lawsuit could not have gone forward in the absence of the material misrepresentation, that party’s legal expenses in defending the lawsuit may be treated as the proximate result of the misrepresentation.

Accordingly, the certified questions should be answered in accordance with this opinion.

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

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein.

       The facts and circumstances of the underlying litigation and Rosenberg’s conduct are set out in detail in the District Court’s decision and the Second Circuit’s certification opinion.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    [903 NE2d 263, 874 NYS2d 866]
    The People of the State of New York, Respondent, v Chris Dorm, Appellant.
    Argued January 14, 2009;
    decided February 12, 2009

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Peter Theis and Robert S. Dean of counsel), for appellant.
    In this domestic violence prosecution, the evidence of defendant’s uncharged misconduct, involving numerous acts similar to the charged crimes and testified to in great detail was improperly admitted as proof of motive and the relationship’s background; the evidence was thinly-disguised propensity evidence and, even if relevant to a valid issue, was far more prejudicial than probative. (People v Molineux, 168 NY 264; Coleman v People, 55 NY 81; People v Sharp, 107 NY 427; People v Shea, 147 NY 78; People v Mayrant, 43 NY2d 236; People v Mateo, 2 NY3d 383; People v Zackowitz, 254 NY 192; People v Rojas, 97 NY2d 32; People v Hudy, 73 NY2d 40; People v Lewis, 69 NY2d 321.)

      Robert M. Morgenthau, District Attorney, New York City (Britta Gilmore and Mary C. Farrington of counsel), for respondent.
    The trial court properly admitted evidence of defendant’s other conduct toward the victim as proof of defendant’s motive and intent, and as necessary background information. (People v Ventimiglia, 52 NY2d 350; People v Gray, 86 NY2d 10; People v Narayan, 54 NY2d 106; People v Fiore, 34 NY2d 81; People v Alvino, 71 NY2d 233; People v Till, 87 NY2d 835; People v Hudy, 73 NY2d 40; People v Fitzgerald, 156 NY 253; People v Thau, 219 NY 39; People v Resek, 3 NY3d 385.)
   OPINION OF THE COURT

Jones, J.

Defendant and victim had been involved in a romantic relationship for three months when the charged crimes occurred. On January 1, 2005, after a New Year’s Eve party, defendant and victim returned to victim’s apartment where an argument erupted during which defendant blocked victim’s attempts to leave and bolted the door. The altercation escalated from pushing and shoving, to throwing of a phone, and ultimately to victim punching defendant and defendant manually choking victim on her bed. The couple unsuccessfully attempted to reconcile in the weeks that followed and the relationship terminated. On January 18, 2005, victim informed the police about the New Year’s Eve incident. Defendant appeared uninvited at victim’s place of employment on January 20, 2005 and after speaking with her at a nearby café, defendant grabbed victim’s hand so as to prevent her from leaving. Victim again contacted the police and defendant was arrested the next day when he returned to that location.

Defendant was charged with assault in the second and third degrees, unlawful imprisonment in the first degree, and stalking in the fourth degree. As probative of intent, motive, and the nature and background of the relationship, the People sought to introduce evidence of defendant’s prior conduct toward victim, and similar conduct against other women which resulted in prior arrests of defendant. The People were precluded from introducing such evidence at the first trial and the jury acquitted defendant of assault in the third degree and stalking in the fourth degree. The jury was deadlocked on the remaining charges.

Defendant was retried on the two remaining charges before a different justice. Unlike the first trial, the court in the second trial allowed the People to introduce evidence of defendant’s prior and subsequent conduct toward victim and gave limiting instructions to the jury explaining the proper use of such evidence. The court did not allow evidence of defendant’s similar conduct against other women. The jury subsequently convicted defendant of unlawful imprisonment in the first degree and assault in the second degree. The Appellate Division unanimously affirmed the conviction, reasoning that the trial court properly permitted “evidence of conflicts between defendant and the victim before and after the incident at issue” because the evidence was “relevant to defendant’s motive, and it provided necessary background regarding the couple’s relationship that tended to explain aspects of the victim’s testimony that might otherwise have been unbelievable or suspect” (47 AD3d 503 [2008]). A Judge of this Court granted leave to appeal (10 NY3d 862 [2008]) and we now affirm.

Evidence of a defendant’s prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant’s criminal propensity (see People v Lewis, 69 NY2d 321 [1987]; People v Beam, 57 NY2d 241 [1982]; People v Allweiss, 48 NY2d 40 [1979]; People v Carmack, 44 NY2d 706 [1978]). Under People v Molineux (168 NY 264 [1901]), the People may use such evidence to prove motive, intent, lack of mistake or accident, identity, or common scheme or plan (see People v Alvino, 71 NY2d 233, 242 [1987]). However, this list is “merely illustrative and not exhaustive” (People v Rojas, 97 NY2d 32, 37 [2001]). Where there is a proper nonpropensity purpose, the decision whether to admit evidence of defendant’s prior bad acts rests upon the trial court’s discretionary balancing of probative value and unfair prejudice.

Contrary to defendant’s arguments, the evidence in this case was not propensity evidence, but was probative of his motive and intent to assault his victim; it provided necessary background information on the nature of the relationship and placed the charged conduct in context (see People v Resek, 3 NY3d 385, 389 [2004]; People v Till, 87 NY2d 835, 837 [1995]). We cannot say that the trial court abused its discretion when it allowed only the evidence of prior conduct relating to victim and gave proper limiting instructions to the jury.

Furthermore, the fact that two justices ruled differently on the admissibility of such evidence does not suggest an abuse of discretion. Both rulings are legitimate exercises of discretion notwithstanding the fact that the first trial resulted in acquittals and a hung jury when the subject evidence was precluded and the second trial resulted in convictions when it was admitted. The outcome of a trial has no bearing on whether the court properly exercised its discretion in admitting evidence.

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

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

Order affirmed.

       The evidence included: (1) a prior incident at a New York City nightclub where defendant tried to prevent victim from leaving the club and later prevented her from leaving the lobby of her apartment building, (2) a subsequent incident occurring on January 20, 2005 where defendant appeared uninvited at victim’s place of employment and prevented her from leaving a café where they chatted, and (3) defendant’s frequent arguments and conflicts with victim during their relationship.


author: Graffeo, J.

text:
    [906 NE2d 370, 878 NYS2d 642]
    The People of the State of New York, Respondent, v Juan Taveras, Appellant.
    Argued January 6, 2009;
    decided February 11, 2009

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Arthur H. Hopkirk and Steven Banks of counsel), for appellant.
    The imposition of a sentence for criminal sexual act in the third degree to run consecutively to consecutive sentences for two counts of falsifying business records in the first degree was illegal because the record fails to establish that the “criminal sexual act” offense was not a material element of one of the consecutively-sentenced falsifying business records counts. (People v Parks, 95 NY2d 811; People v Duffy, 231 AD2d 586; People v Laureano, 87 NY2d 640; People v Day, 73 NY2d 208; People ex rel. Maurer v Jackson, 2 NY2d 259; People v Rosas, 8 NY3d 493; People v Charles, 61 NY2d 321; Arbegast v Board of Educ., 65 NY2d 161; People v Robinson, 95 NY2d 179; Phelps v People, 72 NY 365.)

      Robert M. Morgenthau, District Attorney, New York City (Sheryl Feldman and Mary C. Farrington of counsel), for respondent.
    Since defendant’s act of engaging in sex with a minor involved an act separate and distinct from falsifying business records, consecutive sentences are proper, even if the record showed that defendant’s only intent was to conceal that crime, which it does not. (People v Ramirez, 89 NY2d 444; People v Di Lapo, 14 NY2d 170; People v Arroyo, 93 NY2d 990; People v Laureano, 87 NY2d 640; People v Day, 73 NY2d 208; People v Rosas, 8 NY3d 493; People v Salcedo, 92 NY2d 1019; People v Ramirez, 89 NY2d 444; People v Brown, 80 NY2d 361; People v Truesdell, 70 NY2d 809.)
   OPINION OF THE COURT

Graffeo, J.

In this case, we hold that the actus reus underlying the crime of criminal sexual act in the third degree does not constitute a “material element” of falsifying business records in the first degree. We therefore agree with the Appellate Division that the sentencing court’s imposition of consecutive sentences for these crimes does not violate Penal Law § 70.25 (2).

Defendant Juan Paveras, an assistant principal at a high school in Manhattan, sexually abused a number of students from June 2003 until July 2004. The pattern of conduct primarily involved defendant fondling several boys. He also performed oral sex on a 14-year-old student at his apartment. In an effort to induce the boys not to reveal these activities, defendant falsified the records of a summer youth employment program so that the boys were paid for work they did not perform.

Eventually, the boys disclosed defendant’s sexual activities with them and a 134-count indictment was filed against defendant, charging him with eight felonies and 126 misdemeanors. Specifically, the felony charges consisted of one count of criminal sexual act in the third degree (predicated on the oral sex crime) and seven counts of falsifying business records in the first degree. The remaining misdemeanor counts included 33 counts of forcible touching and third-degree sexual abuse; four counts of endangering the welfare of a child; seven counts of attempted forcible touching and attempted third-degree sexual abuse; six counts of fourth-degree tampering with a witness and second-degree obstructing governmental administration; and 30 counts of second-degree falsifying business records. Defendant fled to the Dominican Republic but was involuntarily returned to the United States and charged with second-degree bail jumping in a separate indictment.

After plea negotiations, the People agreed to allow defendant to plead guilty to six felonies—one count of criminal sexual act in the third degree (Penal Law § 130.40 [2]), four counts of falsifying business records in the first degree (Penal Law § 175.10) and the bail jumping charge (Penal Law § 215.56)— and five misdemeanors (three counts of forcible touching [Penal Law § 130.52] and two counts of attempted forcible touching [Penal Law §§ 110.00, 130.52]). The plea agreement was based on the understanding that defendant would not be sentenced to a prison term exceeding 4 to 12 years.

Defendant thereafter pleaded guilty to the 11 agreed-upon counts in full satisfaction of both indictments. During his allocution, defendant admitted that he molested or attempted to molest five named students on various dates between June 2003 and July 2004 and that he engaged in oral sex with a sixth named student between January and July 2004. He further acknowledged falsifying the employment records of his victims on four separate occasions in July 2004 to “conceal” his sexual activity with the boys. Finally, defendant admitted that he had violated bail restrictions.

At sentencing, the court imposed an aggregate term of 4 to 12 years in prison. To accomplish this result, the court sentenced defendant to 1⅓ to 4 years for each of the six felony convictions, running two of the sentences for the first-degree falsifying business records counts and the sentence on the third-degree criminal sexual act count consecutively to one another and concurrently to the remaining sentences. The court also issued orders of protection directing defendant to avoid contact with his victims.

Defendant appealed, arguing that the consecutive sentence for criminal sexual act in the third degree was illegal under Penal Law § 70.25 (2) and that his aggregate sentence should be reduced to 2⅔ to 8 years. The Appellate Division modified to the extent of vacating both the assessment of a supplemental sex offender fee and certain provisions of the orders of protection, but otherwise affirmed (46 AD3d 399 [2007]). A Judge of this Court granted defendant leave to appeal (10 NY3d 844 [2008]).

The Penal Law provides that concurrent sentences are mandatory “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other” (Penal Law § 70.25 [2]). Pursuant to this directive, we have recognized that consecutive sentences may not be imposed “(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (People v Laureano, 87 NY2d 640, 643 [1996]). Under either prong of the statute, the People bear the burden of demonstrating the legality of consecutive sentences.

In resolving whether concurrent sentences are required, “the sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted” (id.). And in undertaking this review, we have observed:

“Because both prongs of Penal Law § 70.25 (2) refer to the ‘act or omission,’ that is, the ‘actus reus’ that constitutes the offense, the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong). If it is neither, then the People have satisfied their obligation of showing that concurrent sentences are not required” (id. [citations omitted]).

Defendant concedes that the first prong of the statute is not applicable in this case, but maintains that the second prong bars consecutive sentencing for his third-degree criminal sexual act conviction. Relying on People v Catone (65 NY2d 1003 [1985]), he contends that the offense of criminal sexual act in the third degree constitutes a material element of one of the consecutive first-degree falsifying business records counts because he falsified the relevant employment record with the intent to conceal the criminal sexual act. We disagree with his analysis.

In Catone, defendant struck and killed a girl in a pedestrian crosswalk, reduced his speed for a moment and then sped away. Following a jury trial, he was convicted of second-degree manslaughter and felony leaving the scene of an accident, and was sentenced to consecutive terms of imprisonment. On appeal, we held that concurrent sentences were required under Penal Law § 70.25 (2), reasoning that reckless manslaughter was a material element of leaving the scene of an accident without reporting because an element of the latter crime, as it was then defined, required that a person cause the death of another through his own culpable conduct.

Here, examining the elements of the two crimes at issue, third-degree criminal sexual act is committed when a defendant who is 21 years old or more engages in oral sexual conduct with a person under the age of 17 (see Penal Law § 130.40 [2]). The actus reus is oral sexual conduct. A person is guilty of first-degree falsifying business records when “he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof” (Penal Law § 175.10). The relevant actus reus is the creation of a false entry in a business record (see Penal Law § 175.05 [1]). Unlike Catone, the statutory definition of the second crime does not render the first crime “a necessary component in the legislative classification and definitional sense” (People v Day, 73 NY2d 208, 211 [1989]).

We also reject defendant’s contention that a separate crime automatically becomes a material element of falsifying business records in the first degree whenever the People rely on the “intent to conceal” prong of that statute on the theory that concealment, as opposed to an intent to commit another crime or aid in the commission thereof, presupposes a prior completed crime. Read as a whole, it is clear that falsifying business records in the second degree is elevated to a first-degree offense on the basis of an enhanced intent requirement—“an intent to commit another crime or to aid or conceal the commission thereof”—not any additional actus reus element (Penal Law § 175.10). Furthermore, there is no indication that the Legislature intended to treat the components of first-degree falsifying business records differently, allowing consecutive sentences when a defendant makes a false entry with the intent to commit or aid in the commission of another crime, but not when a defendant performs the same action with the intent to conceal an entirely separate crime. We therefore conclude that the statutory elements of the felony sex offense are categorically discrete from the falsifying business records offense, and that “the absence of legislatively declared interdependence in their definitions is evident, compelling an interpretation that consecutive sentences are not forbidden here” (Day, 73 NY2d at 211).

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

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

Order affirmed.

      . Defendant correctly observes that neither the indictment nor the plea colloquy specify what particular sex crimes were concealed by each of the four false employment record entries. Therefore, it must be presumed that one of the consecutive falsifying business records counts was premised on defendant’s intent to conceal the crime of third-degree criminal sexual act (see People v Parks, 95 NY2d 811, 815 [2000]).

      . Penal Law § 175.05 provides:
      “A person is guilty of falsifying business records in the second degree when, with intent to defraud, he:
      “1. Makes or causes a false entry in the business records of an enterprise; or
      “2. Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or
      “3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or
      “4. Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.”


author: Cipabick, J.

text:
    [904 NE2d 808, 876 NYS2d 672]
    The People of the State of New York, Respondent, v Rickey J. Ryan, Appellant.
    Argued January 15, 2009;
    decided February 12, 2009

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender.; Rochester (Janet C. Somes of counsel), for appellant.
    After the sole eyewitness to the crime failed to select Mr. Ryan from a photo array, and selected someone else instead, the police lacked the requisite level of information necessary to detain Mr. Ryan while they showed a second witness the photo array. (People v Hunt, 155 AD2d 957; People v Battaglia, 82 AD2d 389, 56 NY2d 558; People v Hicks, 68 NY2d 234; People v Yukl, 25 NY2d 585; People v De Bour, 40 NY2d 210; People v Hollman, 79 NY2d 181; Wong Sun v United States, 371 US 471; Dunaway v New York, 442 US 200; United States v Sharpe, 470 US 675; People v Johnson, 64 NY2d 617.)

      Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann and Jessica Birkahn Housel of counsel), for respondent.
    The police possessed the requisite reasonable suspicion to briefly detain defendant. (People v Allen, 9 NY3d 1013; People v Pines, 99 NY2d 525; People v Roque, 99 NY2d 50; People v Reyes, 90 NY2d 916; People v Bianchi, 85 NY2d 1022; People v Foster, 85 NY2d 1012; People v Martinez, 80 NY2d 444; People v Jones, 69 NY2d 853; People v Hicks, 68 NY2d 234; People v Van Luven, 64 NY2d 625.)
   OPINION OF THE COURT

Cipabick, J.

The question presented by this appeal is whether the investigatory detention that occurred here exceeded the scope of that permitted under People v Hicks (68 NY2d 234 [1986]). We conclude that it did.

Acting upon descriptions provided by the victim of an early morning carjacking and another person, who was at the scene shortly before the crime occurred, as well as many prior encounters with defendant, a police officer approached defendant and asked him to have a seat in a marked police car. At the time of this request, five hours had elapsed since the carjacking. Defendant agreed to be seated. He was then locked in the police car and told that the purpose of his detention would be explained when a second officer, who was primarily responsible for the carjacking investigation, arrived.

When the second officer arrived, defendant was removed from the car, placed in another locked police vehicle and photographed. The photographs depicted defendant with his hands behind his back, as if handcuffed, which the Appellate Division found that he was. Once confined in the second car, defendant was informed that he was being held as a possible suspect in the earlier carjacking. Defendant was also told that, while he was being detained, an officer was speaking to “a witness” at another location, who had become available to view a photo array. This particular array had been prepared about one hour after the carjacking and was viewed by the victim, who failed to identify defendant and, instead, indicated that another individual most closely resembled the perpetrator.

During the time that defendant was held—approximately 13 minutes—the prospect of his release was never mentioned. Following the non-victim witness’s positive identification of defendant from the photographic array, defendant was arrested and transported to the Public Safety Building. There, he was placed in a locked room to await questioning. He waived his Miranda rights, confessed to the carjacking, provided details as to the stolen car’s location, and—around two hours after his initial detention commenced—signed a written statement memorializing his confession.

The People do not contend that the police had probable cause to arrest defendant prior to the positive photo array identification. And although defendant urges us to conclude that the police did not even have reasonable suspicion to detain him until that time, we need not resolve that issue here. For even assuming that reasonable suspicion was established when it began, this 13-minute detention was not justified under Hicks.

We have recognized that “limited intrusions” extending beyond the scope of traditional stop and frisks “may be justified by special law enforcement interests” even in the absence of probable cause (see Hicks, 68 NY2d at 240-241, quoting Michigan v Summers, 452 US 692, 700 [1981] [internal quotation marks omitted]). Thus, Hicks allowed a brief investigatory detention so that victims of a recent robbery could participate in a showup (see id. at 237). There, the efficacy of the prompt showup procedure depended on the defendant’s and witnesses’ simultaneous presence (see id. at 242). But no similar special law enforcement need justifying defendant’s detention was shown here.

Proper administration of the photo array did not require defendant’s presence and, in fact, the police officer did not even know that the non-victim witness had become available to view the photo array when defendant’s detention began. Nor were there any other exigencies that might have permitted holding defendant while the photo array was conducted (cf. People v Allen, 73 NY2d 378, 379-380 [1989]; People v Behrmann, 264 AD2d 682, 682 [1st Dept 1999]). Thus, the only permissible inference that can be drawn is that this detention was undertaken simply to make it convenient for the police to arrest defendant if a positive identification subsequently occurred (see People v Robinson, 282 AD2d 75, 81 [1st Dept 2001] [“What the police did here, as a practical matter, was to place defendant under arrest in order to obtain sufficient evidence to arrest him”]). Accordingly, we conclude that, on the facts present here, defendant’s detention exceeded the scope permitted under Hicks and that the photographs obtained during that detention must be suppressed.

Although defendant’s detention was illegal under Hicks, the People’s argument that defendant’s confessions were sufficiently attenuated so as to remove any possible taint arising from the detention and render the statements—and any tangible evidence derived therefrom—admissible was not addressed by the courts below. The question of attenuation being a mixed one of law and fact (see People v Conyers, 68 NY2d 982, 984 [1986]; People v Borges, 69 NY2d 1031, 1033 [1987]), the case should be remitted to Supreme Court so that the People’s claim of attenuation can be properly determined. Should Supreme Court find that, after applying the relevant attenuation factors (see People v Johnson, 66 NY2d 398, 407 [1985]; cf. Borges, 69 NY2d at 1033), defendant’s confessions were acquired by means sufficiently independent of his initial detention, its judgment should be amended to reflect that determination. But if Supreme Court finds to the contrary, it should grant defendant’s motion to suppress the evidence, defendant’s guilty plea should be vacated and further proceedings should be had as the circumstances may warrant.

Accordingly, the order of the Appellate Division should be modified by remitting to Supreme Court for further proceedings in accordance with this opinion, and as so modified, affirmed.

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

Order modified, etc.

       To the extent that the People now assert that the detention here was authorized on the basis of defendant’s initial “consent” to be seated in the back of the marked police car, we decline to consider this theory as it was never raised in the suppression court (see People v Johnson, 64 NY2d 617, 619 n 2 [1984]). Neither have the People met their “heavy burden” of proving the voluntariness of defendant’s purported consent to be photographed while handcuffed (see People v Gonzalez, 39 NY2d 122, 128 [1976]).


text:
    [903 NE2d 1155, 875 NYS2d 835]
    Doris Brownley et al., on Behalf of Themselves and Their Minor Children and Others Similarly Situated, Appellants, v Robert Doar, as Commissioner of the New York State Office of Temporary and Disability Assistance, Respondent, et al., Defendants.
    Argued January 7, 2009;
    decided February 17, 2009

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Scott A. Rosenberg, Steven Banks, Susan C. Bahn, Nada A. Geha, Gretchen A. Gonzalez, Young W. Lee, Sarah Mathison, Jack Newton, Jennifer Quintana and Douglass J. Seidman of counsel), Weil, Gotshal & Manges LLP (Scott Martin and Robert T. Polemeni of counsel) for appellants.
    I. Social Services Law § 350 (1) (a) mandates the provision of an adequate shelter allowance to families with minor children who transition from the Family Assistance program to the Safety Net Assistance program after five years. (Jiggetts v Grinker, 75 NY2d 411; Matter of United Univ. Professions v State of New York, 36 AD3d 297; Matter of Delese v Tax Appeals Trib. of State of N.Y., 3 AD3d 612, 2 NY3d 793; Matter of Thomas v Bethlehem Steel Corp., 95 AD2d 118, 63 NY2d 150; People v Bolden, 81 NY2d 146; Pierre v Providence Washington Ins. Co., 99 NY2d 222; Howell v Mills, 53 NY 322; People v White, 73 NY2d 468; People v Finnegan, 85 NY2d 53; People ex rel. Harris v Sullivan, 74 NY2d 305.) II. A denial of assistance to families with children who reach the five-year time limit would violate article XVII of the New York State Constitution. (Tucker v Toia, 43 NY2d 1; Matter of Aliessa v Novello, 96 NY2d 418; Jiggetts v Grinker, 75 NY2d 411; Matter of Lee v Smith, 43 NY2d 453; McCain v Koch, 117 AD2d 198, 70 NY2d 109.)

      Andrew M. Cuomo, Attorney General, New York City (Oren L. Zeve, Barbara D. Underwood and Peter Karanjia of counsel), for respondent.
    I. Social Services Law § 350 (1) (a) applies only to the Family Assistance program and not to the Safety Net Assistance program. (McVay v Wing, 303 AD2d 727; Jiggetts v Grinker, 75 NY2d 411; Matter of Robert J., 2 NY3d 339; Pajak v Pajak, 56 NY2d 394; Matter of Anonymous, 40 NY2d 96; Castro v United Container Mach. Group, 96 NY2d 398; Colon v Aetna Cas. & Sur. Co., 48 NY2d 570; Matter of Gautam v Perales, 179 AD2d 509; Deleo v Kaladjian, 215 AD2d 520; Hedgepeth v Wing, 29 AD3d 632.) II. The New York Constitution does not require that aid to the needy, provided pursuant to article XVII, must be “adequate.” (McVay v Wing, 303 AD2d 727; Society of Plastics Indus, v County of Suffolk, 77 NY2d 761; Matter of E.S. v P.D., 8 NY3d 150; Hope v Perales, 83 NY2d 563; Matter of Aliessa v Novello, 96 NY2d 418; Lovelace v Gross, 80 NY2d 419; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Tucker v Toia, 43 NY2d 1; Matter of Lee v Smith, 43 NY2d 453; Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14.)

      National Center for Law and Economic Justice, Inc., New York City (Henry A. Freedman and Lynn D. Lu of counsel), for Community Service Society of New York and others, amici curiae.
    Appellants are entitled to challenge the adequacy of their shelter allowances because New York Constitution article XVII requires shelter allowances to be sufficient to permit indigent families to care for their minor children in their own homes instead of facing eviction and homelessness, regardless of the funding source of the assistance. (Tucker v Toia, 43 NY2d 1; Matter of Aliessa v Novello, 96 NY2d 418; McCain v Koch, 117 AD2d 198, 70 NY2d 109; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Brown v Wing, 170 Misc 2d 554, 241 AD2d 956; Jiggetts v Grinker, 75 NY2d 411.)
   OPINION OF THE COURT

Graffeo, J.

In New York, eligible individuals with dependent children may receive public assistance for housing costs for up to 60 months under the Family Assistance (FA) program, which is jointly funded by the state and federal governments. Social Services Law § 350 specifies that aid provided under the FA program must be “adequate” to provide the family with a home (see Jiggetts v Grinker, 75 NY2d 411, 421 [1990]). Upon the expiration of the 60-month benefit period, a family may enroll in the Safety Net Assistance (SNA) program, which is funded solely by the State, has no restriction on the period of eligibility and does not limit benefits to persons with children. The issue in this case is whether the adequacy requirement of Social Services Law § 350 applies to the SNA program. We hold that it does not.

I

Before the 20th century, destitute individuals and families often sought housing in institutional “almshouses.” Eventually, societal views changed, prompting New York to adopt the Child Welfare Act of 1915 (L 1915, ch 228). It authorized County Boards of Child Welfare to give monetary allowances to widowed mothers with children under the age of 16 “in order that such children may be suitably cared for in their homes” rather than in institutional settings (Jiggetts v Grinker, 75 NY2d at 420). In the midst of the Great Depression, this program was expanded to extend housing assistance to eligible indigent individuals and families with minor children (rather than only widows) and was referred to as the “Home Relief’ program (L 1929, ch 565). As before, its purpose was to allow impoverished persons to remain in homes instead of institutional settings (see L 1929, ch 565, §77; Bond, Social Welfare Legislation, 1946 NY Legis Ann, at 284-287).

In 1935, Congress passed the Social Security Act and established the Aid to Families with Dependent Children (AFDC) program as a joint federal-state system to provide support to needy families. Under the AFDC program, states determined the level of public assistance needed by parents and their children, and the federal government reimbursed 50% of those costs. New York enacted its companion Aid to Dependent Children (ADC) program in compliance with AFDC, containing two main components—(1) basic grants for food and other necessities, and (2) shelter grants.

In developing the ADC program in New York, the Legislature specified the dollar amounts of monthly assistance payable to recipients of basic grants, but directed that the amount for shelter allowances be set administratively to reflect local rent levels in the various regions of the state (Social Services Law § 131-a [1]; 18 NYCRR 352.3). The former Department of Social Services therefore promulgated regulations that set forth the maximum shelter allowances based on the district or region where recipients lived. Those assistance levels were subject to the requirement in former Public Welfare Law § 181 (4) that “[allowances shall be adequate to enable the mother or relative to bring up the child or children properly, having regard for the physical, mental and moral well-being of such child or children” (L 1937, ch 15, at 26). In addition to the creation of the ADC program, the Legislature continued Home Relief as a separate program, which was not supported with federal money.

In 1940, the Public Welfare Law was renamed the Social Welfare Law (L 1940, ch 619, § 2). The language in former Public Welfare Law § 181 (4) requiring that ADC allowances be “adequate” was recodified in Social Welfare Law § 350 (1) (a) and it has remained substantively unchanged through today (see Social Services Law § 350 [1] [a]).

This Court considered claims asserting a right to “adequate” ADC shelter allowances under Social Services Law § 350 in Jiggetts v Grinker (75 NY2d 411 [1990]). The plaintiffs were ADC recipients residing in New York City whose actual shelter costs exceeded the maximum payable to them pursuant to 1988 schedules prepared by the New York Department of Social Services. Social Services Law § 350 (1) (a) provided that:

“Allowances shall be adequate to enable the father, mother or other relative to bring up the child properly, having regard for the physical, mental and moral well-being of such child, in accordance with the provisions of section one hundred thirty-one-a of this chapter and other applicable provisions of law. Allowances shall provide for the support, maintenance and needs of one or both parents if in need, and in the home.”

Noting that New York “has a long history of protecting children in the home” (75 NY2d at 420), we concluded that the adequacy requirement of section 350 imposed a statutory duty on the Commissioner of the New York Department of Social Services to establish ADC shelter allowances that bore a reasonable relation to the cost of housing in New York City (see id. at 421). To achieve that objective, the case was remitted for a trial to determine whether the ADC shelter allowances established by the Department of Social Services were adequate to meet the housing needs of poor families residing in New York City.

During the course of the Jiggetts litigation, Congress substantially reformed the federal-state AFDC program, enacting the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub L 104-193, 110 US Stat 2105 [1996], codified at 42 USC § 601 et seq.), which was intended to “promot[e] the fundamental values of work, responsibility, and family” (Statement by President William J. Clinton Upon Signing HR 3734, 32 Wkly Compilation Presidential Docs 1487 [Aug. 26, 1996], reprinted in 1996 US Code Cong & Admin News, at 2891). This legislation replaced AFDC with a new program—the Temporary Assistance for Needy Families (TANF) program (42 USC § 601 et seq.). TANF restricted the receipt of public assistance to a maximum of 60 months during a recipient’s lifetime, regardless of subsequent need (see 42 USC § 608 [a] [7] [A]).

The following year, New York complied with this congressional mandate and substituted its ADC program with a Family Assistance program for families with dependent minor children (see L 1997, ch 436, part B; Social Services Law § 343 et seq.). In furtherance of the State’s policy aim of continuing support to families and individuals after expiration of the federal 60-month benefit period, the New York Legislature enacted a separate and distinct, state-funded Safety Net Assistance program (see Social Services Law § 157 et seq.). SNA replaced the Home Relief component and was made available to all needy individuals, not just families with children (see generally Matter of Rodriguez v Wing, 94 NY2d 192, 196-197 [1999]). Under SNA, an individual or family may apply to a local public assistance agency to receive continued benefits after FA eligibility ends. Pursuant to Social Services Law § 159 (1), “[s]afety net assistance shall be provided in amounts determined in accordance with article five and, where applicable, section one hundred seventeen” of the Social Services Law. As currently set forth in regulations promulgated by defendant Commissioner of the New York Office of Temporary and Disability Assistance (OTDA) (the successor agency to the Department of Social Services), the amount of the shelter allowance established under SNA is identical to the aid provided by the FA program (see 18 NYCRR 352.3). Thus, when a person transitions from FA into SNA, the level of shelter assistance does not change.

In 2002, State Supreme Court entered a judgment in the Jiggetts litigation and the shelter allowance schedule for FA was adjusted upward by the State in accordance with the court’s order. After entry of the judgment, families that received benefits under SNA moved to intervene in the Jiggetts action, alleging that Social Services Law § 350 (1) required that SNA shelter allowances be based on the same adequacy standard that applies to FA benefits. Supreme Court granted the motions to intervene and permitted plaintiffs’ landlords to join the action as additional defendants. The court concluded that families with minor children were entitled to SNA shelter allowances at the same level that corresponded to FA benefits (see Jiggetts v Dowling, 196 Misc 2d 678 [Sup Ct, NY County 2003]). The court therefore issued a preliminary injunction requiring the Commissioner of the New York State Department of Social Services to pay increased shelter allowances under the SNA program for New York City housing.

In separate litigation, the Appellate Division, Second Department, determined that recipients of SNA shelter allowances did not have standing to challenge the adequacy of the housing allowance schedules or the benefits they received (see McVay v Wing, 303 AD2d 727 [2d Dept 2003], lv dismissed 100 NY2d 577 [2003]; Shubrick v Wing, 303 AD2d 744 [2d Dept 2003], lv dismissed 100 NY2d 577 [2003]). Two years later, the Appellate Division, First Department, reversed Supreme Court’s order in Jiggetts, agreeing with the McVay court that intervention was improper because the plaintiffs’ benefits were provided by the SNA program, whereas the plaintiffs in the Jiggetts action received assistance under the AFDC/FA programs (see Jiggetts v Dowling, 21 AD3d 178 [1st Dept 2005], lv dismissed 6 NY3d 807 [2006]). The First Department suggested that plaintiffs raise the issue regarding the applicability of the section 350 adequacy requirement to the SNA program in their own lawsuit. Hence, the case now before us was commenced.

II .

Plaintiffs Doris Brownley and Janee Nelson are residents of New York City who have dependent children and receive benefits from the SNA program. They allege that the payments they obtain from SNA are less than the amount of their actual rents and that the stipends are inadequate to meet their housing needs. As a result, their landlords have commenced nonpayment proceedings against them. Plaintiffs brought this action on behalf of themselves and all families with children in New York City who receive SNA benefits and who are threatened with eviction because of the alleged inadequacy of SNA allowances. They seek monetary and injunctive relief that would prevent plaintiffs from being evicted from their homes. According to the complaint, current SNA shelter allowances violate both section 350 of the Social Services Law and article XVII of the State Constitution.

The Commissioner of OTDA moved to dismiss the statutory cause of action, arguing that plaintiffs lacked standing to raise the adequacy claim because section 350 is not pertinent to the SNA program. Supreme Court denied the motion and granted plaintiffs’ request for a preliminary injunction, concluding that the adequacy requirement of section 350 applied to the SNA benefits under Social Services Law § 159 because that statute incorporates the provisions of article 5 of the Social Services Law and section 350 is included in article 5 (11 Misc 3d 615 [2006]). In another case, the Second Department subsequently reaffirmed its holding that only FA recipients, and not SNA enrollees, have standing to challenge the adequacy of shelter allowances under Social Services Law § 350 (see Hedgepeth v Wing, 29 AD3d 632 [2d Dept 2006]), so Supreme Court dismissed this action (2006 NY Slip Op 30540[U]). The Appellate Division affirmed, holding that section 350’s adequacy requirement does not encompass the SNA program (44 AD3d 313 [2007]). We granted leave to appeal (10 NY3d 848 [2008]) and now agree with that conclusion.

Ill

Plaintiffs contend that the adequacy requirement applies to the SNA program because Social Services Law § 159 provides that SNA benefits must be calculated in accordance with the provisions of article 5 of the Social Services Law, of which section 350 is a part. In our view, this argument fails to account for the fundamental differences between the FA and SNA programs (see generally Matter of Robert J., 2 NY3d 339, 345 [2004]). Family Assistance is part of the Aid to Dependent Children program delineated in title 10 of article 5 of the Social Services Law and is “the primary program in the State for ensuring the welfare of needy children” (Jiggetts v Grinker, 75 NY2d at 420). As the program’s name emphasizes, the purpose of ADC/FA is “to enable the father, mother or other relative” to raise a needy “child properly, having regard for the physical, mental and moral well-being of such child” (Social Services Law § 350 [1] [a]). In light of this focus on providing a sufficient upbringing to children of impoverished individuals, we have recognized that it was “reasonable” for the Legislature to codify a heightened “adequacy” standard in section 350 in order to promote “special protection to ensure the health and well-being of children in a program that is dedicated to protecting the welfare of children deprived of parental support” (Jiggetts, 75 NY2d at 420).

In contrast, Safety Net Assistance appears in title 3 of article 5, entitled “Home Relief.” It places no restriction on how long a person is eligible to receive SNA benefits and applies more broadly as it “is not contingent upon the presence of children in the household and it is not specifically designed to deal with their needs” (75 NY2d at 420). Consequently, we impliedly recognized in Jiggetts that the “special protection” of section 350’s adequacy requirement should not apply outside the context of ADC/Family Assistance (id.). Indeed, neither section 159, nor any other provision in title 3 of article 5 of the Social Services Law, clearly indicates that the Legislature intended to incorporate the adequacy requirement into the SNA program. Moreover, acceptance of plaintiffs’ argument would allow individuals with children in SNA to invoke the adequacy standard but preclude persons without children from doing so—a conclusion that finds no support in the construction of Social Services Law article 5 or its legislative history.

This issue was addressed by the courts before the 1997 statutory amendments that created the FA and SNA programs. Under the preexisting legislative scheme, it had been determined that section 350 did not apply to the Home Relief program (which was the predecessor to SNA) (see Matter of Gautam v Perales, 179 AD2d 509, 511 [1st Dept 1992], lv denied 80 NY2d 758 [1992]; Deleo v Kaladjian, 215 AD2d 520, 521 [2d Dept 1995] ). Presumably, the Legislature was aware of those interpretations of the Social Services Law and could have adopted a provision parallel to section 350 if it intended to transport the FA adequacy standard into SNA when section 159 was amended in 1997 (see Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 157 [1987]). Hence, the failure to include an adequacy requirement in section 159 or a direct statutory reference to section 350 indicates that the Legislature did not impose that special protection on the SNA program, which is the conclusion reached in cases decided after the enactment of the 1997 amendments (see McVay v Wing, 303 AD2d 727 [2d Dept 2003], lv dismissed 100 NY2d 577 [2003]; Shubrick v Wing, 303 AD2d 744 [2d Dept 2003], lv dismissed 100 NY2d 577 [2003]; Hedgepeth v Wing, 29 AD3d 632 [2d Dept 2006]; Brownley v Doar, 44 AD3d 313 [1st Dept 2007]).

Policy considerations also support the Commissioner’s determination that the section 350 adequacy standard is not a component of SNA. As previously noted, one of the primary changes effected by the 1996 federal amendments that eliminated the AFDC program and created the TANF program was the 60-month restriction on the receipt of federal welfare assistance. The objective of this limitation was to provide a basic standard of living for a finite time period to provide an incentive to individuals to obtain an education or job training that would allow them to become gainfully employed and eliminate or reduce their reliance on government assistance (see generally Statement by President William J. Clinton Upon Signing HR 3734, 32 Wkly Compilation Presidential Docs 1487 [Aug. 26, 1996] , reprinted in 1996 US Code Cong & Admin News, at 2891). If plaintiffs here were to prevail, SNA payments would be subjected to an adequacy standard without any temporal or monetary ceiling, contrary to the federal purposes that TANF was intended to promote (see Notice of Adoption of Revised 18 NYCRR parts 352 & 381, eff Nov. 1, 2003, Revised Regulatory Impact Statement, at 8).

We are also mindful that New York decided that it is in the State’s best interest to support its needy residents after federal public assistance benefits are discontinued and therefore voluntarily undertook to supplement the TANF and FA programs with Safety Net Assistance. In order to provide SNA support to the largest number of indigent individuals for the longest period of time, the Legislature entrusted the Commissioner of OTDA with the duty to promulgate schedules of SNA grants based on the funding resources available to the agency, together with other relevant considerations. In reaching these determinations, it was the burden of the legislative and executive branches of government to weigh “the intractable economic, social and even philosophical problems presented by public welfare assistance programs” (Matter of Barie v Lavine, 40 NY2d 565, 569 [1976]). We therefore hold that the adequacy standard set forth in Social Services Law § 350 is not a component of the SNA program.

IV

Plaintiffs alternatively maintain that article XVII of the State Constitution mandates that their SNA allowances be increased consistent with an adequacy requirement. This constitutional provision specifies that the “aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine” (NY Const, art XVII, § 1). Article XVII “was intended to serve two functions: First, it was felt to be necessary to sustain from constitutional attack the social welfare programs . . . created by the State . . . and, second, it was intended as an expression of the existence of a positive duty upon the State to aid the needy” (Tucker v Toia, 43 NY2d 1, 7 [1977]).

Article XVII, however, was not intended to “mandate that public assistance must be granted on an individual basis in every instance” or “command[ ] that, in carrying out the constitutional duty to provide aid, care and support of the needy, the State must always meet in full measure all the legitimate needs of each recipient” (Matter of Bernstein v Toia, 43 NY2d 437, 448-449 [1977]). Thus, there is no right to a constitutionally prescribed minimum shelter allowance since it is the prerogative of the Legislature to “determine who is ‘needy’ and allocate the public dollar accordingly” (Matter of Aliessa v Novello, 96 NY2d 418, 428 [2001]). We have explained that if

“the over-all consequence of the method of distribution of aid to the needy adopted initially by the Legislature, and subsequently by the department charged with executing the social services program, is reasonably expected to be in furtherance of the optimum utilization of public assistance funds, there has been no violation of the constitutional command” unless a group of needy persons has been impermissibly excluded from eligibility for benefits (Matter of Bernstein v Toia, 43 NY2d at 449).

No such transgression has occurred here because plaintiffs have not demonstrated that the Legislature acted unreasonably in designing the SNA program or that the State has wrongfully excluded a class of needy individuals from the program (compare Matter of Lee v Smith, 43 NY2d 453 [1977]). Plaintiffs therefore have not met their burden of establishing that the SNA shelter allowances violate article XVII of the State Constitution.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, without costs.

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

Order, insofar as appealed from, affirmed, without costs.

      . After the trial, Supreme Court held that the State’s 1988 shelter allowances were inadequate, created an interim relief schedule and ordered the Commissioner to develop and submit a proposed schedule of shelter allowances for New York City participants in the AFDC program. The Appellate Division affirmed (see Jiggetts v Dowling, 261 AD2d 144 [1st Dept 1999]) and the State’s motion for leave to appeal was dismissed (94 NY2d 796 [1999]).

      . In addition to a shelter allowance, SNA also includes a basic grant, a home energy allowance, a supplemental home energy allowance and a fuel allowance if heat is not included in rent (see Temporary Assistance Source Book, at 2-4, http://www.otda.state.ny.us/main/ta/TASB.pdf [New York State Office of Temporary and Disability Assistance, Dec. 28, 2007, accessed Jan. 20, 2009]).

      . Although there is a supplemental housing allowance program in New York City called the Family Eviction Prevention Supplement (FEPS) that provides money in addition to SNA assistance, plaintiffs are not eligible to participate in that program.


text:
    [904 NE2d 823, 876 NYS2d 687]
    The People of the State of New York, Respondent, v Felix Soriano Guerrero, Appellant.
    Argued January 8, 2009;
    decided February 19, 2009

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (William A. Loeb and Robert S. Dean of counsel), for appellant.
    The mandatory surcharge and crime victim assistance fee, which were added to appellant’s sentence and commitment sheet by the clerk of the court, constituted components of appellant’s sentence, thus requiring that imposition of the fees be pronounced by the court at sentencing. (People v Lemos, 34 AD3d 343; People v Sparber, 10 NY3d 457; People v Harris, 51 AD3d 523, 10 NY3d 935; People v Nieves, 2 NY3d 310; People v Perry, 36 NY2d 114; People v Ford, 86 NY2d 397; Smith v Doe, 538 US 84; Kellogg v Travis, 100 NY2d 407; People v Catu, 4 NY3d 242; People v Quinones, 95 NY2d 349.)

      Robert M. Morgenthau, District Attorney, New York City (Richard Nahas and Vincent Rivellese of counsel), for respondent.
    The mandatory surcharge and fees imposed by Penal Law § 60.35 are not part of a defendant’s sentence at all, but certainly do not need to be separately pronounced by the court at sentencing. (People v Sparber, 10 NY3d 457; Smith v Doe, 538 US 84; People v Catu, 4 NY3d 242; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; United States v Spallone, 399 F3d 415; Doe v Pataki, 120 F3d 1263, 522 US 1122; People v Nieves, 2 NY3d 310; Ferrin v New York State Dept. of Correctional Servs., 71 NY2d 42; Matter of Tonis v Board of Regents of Univ. of State of N.Y., 295 NY 286; People v Santi, 3 NY3d 234.)
   OPINION OF THE COURT

Read, J.

On July 20, 2006, defendant Felix Soriano Guerrero pleaded guilty to second-degree intentional murder (Penal Law § 125.25 [1]) in exchange for an indeterminate sentence of 19 years to life imprisonment. At the subsequent sentencing hearing on September 11, 2006, Supreme Court stated that defendant had acknowledged “that he accepts the plea and the Court certainly intends to go ahead and impose the sentence promised at the time we reached that agreement[;] that is[,] an indeterminate term of imprisonment of 19 years to life.” The judge did not mention that defendant was required to pay a mandatory surcharge of $150 and a crime victim assistance fee of $2 as a result of his conviction. These assessments were, however, listed on the “Uniform Sentence and Commitment” sheet, which the clerk signed, and the court worksheet, which the judge signed and stamped.

Defendant appealed, arguing that the mandatory surcharge and crime victim assistance fee should have been pronounced by the judge in open court at sentencing. After the Appellate Division unanimously affirmed his conviction and sentence (45 AD3d 313 [2007]), a Judge of this Court granted defendant leave to appeal (10 NY3d 863 [2008]) so that we might review his claim in light of our recent decision in People v Sparber (10 NY3d 457 [2008]). We now hold that the mandatory surcharge and crime victim assistance fee mandated by Penal Law § 60.35 (1) are not a part of a sentence within the meaning of sections 380.20 and 380.40 of the CPL; therefore, a judge need not pronounce them in a defendant’s presence during sentencing.

CPL 380.20 calls upon courts to “pronounce sentence in every case where a conviction is entered”; CPL 380.40 (1) directs that “[t]he defendant must be personally present at the time sentence is pronounced.” CPL 1.20 (13), in turn, defines “conviction” as a plea or verdict of guilty, while CPL 1.20 (14) defines “sentence” as “the imposition and entry of sentence upon a conviction.” Thus, although the CPL commands that a defendant’s “sentence” must be “pronounced” by the court in the defendant’s presence, it gives no guidance as to which consequences of a conviction are covered by this requirement. This is where our decisions in Sparber and People v Nieves (2 NY3d 310 [2004]) come into play.

In Sparber, we concluded that because postrelease supervision (PRS) is a component element of a sentence, CPL 380.20 and 380.40 require a judge to pronounce the terms of PRS at sentencing (10 NY3d at 468-469). In Nieves we found a defendant’s unpreserved claim of error to be unreviewable under the exception to the preservation requirement for an illegal sentence. This was so because “although the orders of protection [in question] were issued at [Nieves’] sentencing proceeding, it [wa]s evident from the statutory scheme that the orders were not a part of defendant’s sentence” (2 NY3d at 316). In both cases, we carefully examined the language of the statute imposing or authorizing the particular consequence of conviction at issue in order to decide whether it inhered in the sentence.

For example, at the time of our decision in Sparber, Penal Law § 70.45, entitled “Determinate sentence; post-release supervision,” deemed PRS to be “a part” of a determinate sentence (see 10 NY3d at 468-469); the provision began as follows: “1. In general. Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision” (emphasis added). Concomitantly, Penal Law § 70.00 (6) specifies that the determinate sentences for which it provides “shall include, as a part thereof, a period of post-release supervision in accordance with section 70.45” (emphasis added). By contrast, the statute construed in Nieves—CPL 530.13 (4)— “[did] not characterize permanent orders of protection as a component of sentencing,” and “[n]o reference [was] made in any . . . provisions [governing sentences for criminal offenses] to an order of protection as a permissible sentence” (Nieves, 2 NY3d at 316).

The statute imposing the mandatory surcharge and crime victim assistance fee, while noting that these assessments are to be “levied at sentencing,” describes them as distinct from “any sentence required or permitted by law” (Penal" Law § 60.35 [1] [a]). Specifically, Penal Law § 60.35 (1) (a) states that “there shall be levied at sentencing a mandatory surcharge, sex offender registration fee, DNA databank fee and a crime victim assistance fee in addition to any sentence required or permitted by law” (emphasis added), rather than as “a part” of the sentence itself, as was the case with the statute we interpreted in Sparber. Unlike the statute we considered in Nieves, section 60.35 (l)’s text clearly indicates that the surcharge and fee are not incorporated into the sentence; it is not merely silent as to this issue. As a result, the fact that this provision is within the Penal Law’s sentencing scheme does not lead to the conclusion that these assessments are component elements of the sentence.

Defendant argues, however, that the language of section 60.35 (1) does not mandate the outcome in this case because Penal Law § 60.35 (2) refers to a “sentence to pay a mandatory surcharge, crime victim assistance fee or supplemental sex offender victim fee” (emphasis added). But it is subdivision (1) of section 60.35—not subdivision (2)—which actually creates the obligation to pay the mandatory surcharge and crime victim assistance fee; subdivision (2) merely tells the court how to calculate the surcharge and the various fees in cases where a person has been convicted of two or more crimes or violations or offenses. Further, section 60.35 (l)’s legislative history strongly supports the proposition that the Legislature did not intend the surcharge or fee to be “an additional punishment component” of a sentence (see Sparber, 10 NY3d at 469).

Section 60.35 was originally enacted as part of a massive revenue-raising bill meant to “avert the loss of an estimated $100 million in State tax revenues” (Legislative Mem in Support, Bill Jacket, L 1982, ch 55, at 6; see also People v Quinones, 95 NY2d 349, 352 [2000] [“The mandatory surcharge/crime victim assistance fee is paid to the State to shift costs of providing services to victims of crime from law abiding taxpayers and toward those who commit crimes” (internal quotations marks omitted)]; People v Barnes, 62 NY2d 702, 703 [1984] [mandatory surcharge levied and collected following every criminal conviction “appear(s) to be related ... to the State’s legitimate interest in raising revenues”]).

Finally, the statute’s nomenclature reinforces its nonpunitive nature: the assessments imposed by section 60.35 (1) are called a “surcharge” or a “fee,” not a “penalty.” Indeed, when first enacted in 1982, Penal Law § 60.35 was entitled “Mandatory penalty assessment required in certain cases” (emphasis added). The very next year, the Legislature changed every statutory reference to “penalty assessment” in Penal Law § 60.35 and CPL 420.35 to “mandatory surcharge” (see L 1983, ch 15, §§ 2, 3 [emphasis added]). A “surcharge” is generally defined as “an additional tax, cost, or impost” (see Merriam-Webster’s Collegiate Dictionary 1185 [10th ed 1996]).

The Senate-Assembly Memorandum in Support of the 1983 legislation—the “subject and purpose” of which was to “provide[ ] the revenues necessary to finance the 1983-84 State Budget” (see Bill Jacket, L 1983, ch 15, at 9)—states as follows:

“SUMMARY OF PROVISIONS . . .
“Sections two and three amend the Penal Law and the Criminal Procedure[ ] Law to make technical changes to collection procedures first enacted in 1982-83. These technical changes correct the problems that were raised by attorneys and judges alike, and will allow the surcharge program to be implemented with a minimum of confusion” (id.).

Most of the technical changes made by sections 2 and 3 consisted of substituting “mandatory surcharge” for “penalty assessment” (specifically, 13 separate substitutions in Penal Law § 60.35 and two separate substitutions in CPL 420.35, including in the title of both provisions). While there is no discussion or explanation in the legislative history of the legal “problems” or “confusion” the Legislature meant to dispel by making these linguistic changes, the revised nomenclature eliminated the implication connoted by use of the word “penalty” that this assessment was meant to be punitive as well as to raise revenue.

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

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

Order affirmed.


author: Acting Chief Judge Ciparick.

text:
    [904 NE2d 802, 876 NYS2d 666]
    The People of the State of New York, Appellant, v Anthony Romeo, Respondent.
    Argued January 7, 2009;
    decided February 11, 2009

      POINTS OF COUNSEL

      Thomas J. Spota, District Attorney, Riverhead (Michael Blakey of counsel), for appellant.
    Respondent was not denied his constitutional right to a speedy trial. (Klopfer v North Carolina, 386 US 213; Barron v Mayor & City Council of Baltimore, 7 Pet [32 US] 243; People v Prosser, 309 NY 353; Doggett v United States, 505 US 647; Barker v Wingo, 407 US 514; People v Taranovich, 37 NY2d 442; People v Watts, 57 NY2d 299; People v Vernace, 96 NY2d 886; People v Konieczny, 2 NY3d 569; People v Blakley, 34 NY2d 311.)

      Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., New York City (Barry A. Bohrer and Kristy Watson Milkov of counsel), for respondent.
    I. The extensive postindictment delay deprived Mr. Romeo of his constitutional right to a speedy trial. (Klopfer v North Carolina, 386 US 213; People v Singer, 44 NY2d 241; People v Staley, 41 NY2d 789; Strunk v United States, 412 US 434; People v Taranovich, 37 NY2d 442; Barker v Wingo, 407 US 514; People v Hansen, 95 NY2d 227; People v Lopez, 6 NY3d 248; People v Callahan, 80 NY2d 273; Doggett v United States, 505 US 647.) II. The delay is unquestionably attributable to the People. (Smith v Hooey, 393 US 374; Barker v Wingo, 407 US 514; People v Prosser, 309 NY 353; People v McLaurin, 38 NY2d 123; People v Wilt, 43 AD2d 658; United States v Pomeroy, 822 F2d 718; United States v McConahy, 505 F2d 770; United States v McDonald, 172 F Supp 2d 941; People v Singer, 44 NY2d 241; United States v Walton, 814 F2d 376.) III. Mr. Romeo repeatedly asserted his speedy trial rights throughout an almost 19-year period of delay. (Barker v Wingo, 407 US 514;
      People v Rodriguez, 50 NY2d 553; People v Bancroft, 23 AD3d 850.) IV The People’s inordinate delay prejudiced Mr. Romeo. (Doggett v United States, 505 US 647; Moore v Arizona, 414 US 25; People v Taranovich, 37 NY2d 442; People v Singer, 44 NY2d 241; Barker v Wingo, 407 US 514; United States v McDonald, 172 F Supp 2d 941; People v Waldron, 6 NY3d 463; People v Vernace, 96 NY2d 886; People v Lesiuk, 81 NY2d 485.) V No plausible claim can be made that the “nature of the underlying charge” is the cause of the People’s delay in prosecuting Mr. Romeo. (Barker v Wingo, 407 US 514; People v Taranovich, 37 NY2d 442; People v Santiago, 209 AD2d 885.)
   OPINION OF THE COURT

Acting Chief Judge Ciparick.

The question raised by this appeal is whether the People’s lengthy postindictment delay occasioned by delaying their prosecution in favor of a Canadian prosecution violated defendant’s constitutional right to a speedy trial. Applying the five-factor speedy trial analysis articulated in People v Taranovich (37 NY2d 442 [1975]), we conclude that it did and therefore affirm.

I

In November 1985, a fatal shooting occurred in the victim’s Fire Island home, in Suffolk County. Ballistics evidence taken over a year later indicated that a gun belonging to defendant was the murder weapon. In February 1987, Suffolk County Court ordered defendant to provide a DNA sample to compare with DNA obtained from hair the victim had in his hand when he died. Defendant’s attorney scheduled a date for his client to surrender to Suffolk County law enforcement officials and to provide a sample of his DNA for comparative testing.

Two days before the scheduled date, March 5, defendant, armed with a gun, absconded to Canada in his car. On March 8, a Canadian constable pulled the car over for speeding. Defendant pulled his gun, and shot and killed the officer. He then discarded the firearm and reentered the United States, making his way to Boston, where he was arrested at Logan International Airport while attempting to board a plane to Florida. He was arraigned on the Canadian warrant before a federal magistrate and held without bail pending extradition to Canada. Pursuant to court order, Suffolk County law enforcement authorities came to Boston and obtained hair and blood samples from defendant that matched the hair strands found in the victim’s hand.

On March 27, a Suffolk County grand jury indicted defendant on two counts of murder in the second degree (Penal Law § 125.25 [1], [2]) and the People filed a warrant to detain him in the United States. On April 1, while defendant was still in federal custody, he made the first of a series of formal demands to the People for an immediate arraignment and trial on the Suffolk County indictment. He made a similar demand to the United States Department of Justice, asserting his constitutional right to a speedy trial.

On May 15, a Canadian official wrote a letter to the Suffolk County District Attorney’s Office stating options available under the existing extradition treaty between the United States and Canada that would enable defendant’s return to the United States after a Canadian conviction. The letter was encouraging in tone, but did not offer assurance that a prompt return would be arranged.

On May 29, defendant, still in federal custody, but now in Missouri, filed an order to show cause in Suffolk County Court demanding a writ of habeas corpus to be produced for arraignment in Suffolk County before his extradition to Canada. The People argued that defendant would suffer no unusual delay in facing trial in Suffolk County by being tried in Canada first— apparently under the mistaken belief that defendant would immediately be brought back to Suffolk County after his trial in Canada. On June 17, Suffolk County Court denied defendant’s application, holding that the People could defer prosecution on the Suffolk County murder charges. The court cautioned the People, however, that any delay caused by allowing the Canadian prosecution to proceed first could result in a violation of defendant’s rights to a speedy trial, redress for which defendant would be free to pursue at a later time.

The People still elected to defer prosecution. Defendant was extradited to Canada, where he was tried and convicted of the constable’s murder. He received a sentence of imprisonment of 25 years to life with parole eligibility in 2011. The People never sought extradition to Suffolk County.

On July 23, 1999, 12 years after having been indicted for the Fire Island murder, defendant moved in Suffolk County Court to dismiss the murder indictment on constitutional and statutory speedy trial grounds. The court denied the application. Six years later, in November 2005, defendant was brought back to Suffolk County following amendments to the Canada-United States Extradition Treaty that allowed for the “borrowing” of defendant from Canada. Defendant was arraigned on the Suffolk County indictment and, in February 2006, entered a guilty plea to manslaughter in the first degree and was sentenced to a term of imprisonment of 7 to 21 years to be served concurrently with the Canadian sentence. Defendant appealed, asserting that the 19-year postindictment delay deprived him of his constitutional right to a speedy trial.

The Appellate Division reversed the conviction and dismissed the indictment, holding that the People’s delay violated defendant’s right to a speedy trial (47 AD3d 954 [2008]). The court took into consideration only the 12-year delay in prosecution, from 1987 until 1999, when defendant filed his speedy trial motion. The Appellate Division reasoned that the People’s decision to defer their prosecution in favor of the Canadian prosecution and failure to make an extradition request to Canada, even though it was unclear that Canada would have denied the request, caused the extended delay in prosecution. A Judge of this Court granted the People leave to appeal (10 NY3d 869 [2008]) and we now affirm.

II

A criminal defendant’s right to a speedy trial is guaranteed both by the Sixth Amendment to the United States Constitution (US Const 6th, 14th Amends) and by statute (CPL 30.20; Civil Rights Law § 12). Violation of this right results in dismissal of an indictment (see Strunk v United States, 412 US 434, 439-440 [1973]; People v Taranovich, 37 NY2d 442, 444 [1975]).

The term “speedy trial” must be evaluated in the context of a sensitive balancing of several factors, with no one factor being dispositive of a violation, and with no formalistic precepts by which a deprivation of the right can be assessed (see Doggett v United States, 505 US 647, 651 [1992]; Taranovich, 37 NY2d at 444-445). The five factors to be considered are: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of defendant’s defense (see Taranovich, 37 NY2d at 445). The balancing of these factors must be performed carefully in light of the particular facts in each case (see People v Vernace, 96 NY2d 886, 887 [2001]).

The first factor, the extent of the delay, is of critical importance because “all other factors being equal, the greater the delay the more probable it is that the accused will be harmed thereby” (Taranovich, 37 NY2d at 445). There is no specific temporal period by which a delay may be evaluated or considered “presumptively prejudicial” (see Doggett, 505 US at 652). Where the delay is lengthy, an examination of the other factors is triggered, and the length of delay becomes one factor in that inquiry (see id.).

Here, the delay between the indictment and the filing of the speedy trial motion was an extraordinary period of 12 years (see Doggett, 505 US at 658 [8½-year delay was “extraordinary” (internal quotation marks omitted)]; Barker v Wingo, 407 US 514, 533 [1972] [5½-year delay was “extraordinary”]; People v White, 32 NY2d 393, 398 [1973] [four-year delay violated the defendant’s right to a speedy trial]; People v Winfrey, 20 NY2d 138 [1967] [4½-year delay]). Although not in itself decisive, the 12-year delay requires close scrutiny of the other factors, especially the question of why the delay occurred. It was the People’s burden to bring defendant to trial in a timely fashion (see Smith v Hooey, 393 US 374, 383 [1969]). The genesis of this extraordinary delay was the People’s decision to defer their prosecution, allowing defendant to be sent abroad for a foreign murder prosecution, and then failing to make an extradition request to Canadian authorities, which, if granted, might have mitigated the length of the delay.

Soon after the filing of this indictment, defendant made repeated demands to be arraigned in Suffolk County before being sent to Canada. Additionally, during a hearing to determine whether defendant could be prosecuted in Canada first, Suffolk County Court cautioned the People that their decision might cause a speedy trial violation. Thus, even prior to their decision to defer prosecution, the People had been placed on notice that their decision might violate defendant’s constitutional speedy trial rights, as defendant was already making claims that he was being prejudiced by the delay. In the face of these warnings, the People still allowed defendant to be prosecuted abroad before even arraigning him on the Suffolk County murder indictment.

The People argue that the correspondence they received from Canadian officials justified their decision to defer prosecution and the ensuing lengthy delay. Defendant does not suggest that the People acted with bad faith, which obviously would weigh heavily in favor of dismissal of the indictment (see Doggett, 505 US at 656). But even if acting under the mistaken belief that defendant’s presence could be obtained in Suffolk County promptly after the Canadian trial, the People still knew or should have known that there was no guarantee that defendant would be brought back to Suffolk County in a timely manner. They were advised that the extradition treaty in effect would have enabled the People to request defendant’s extradition, which the Canadian authorities had the discretion to grant or defer until the completion of defendant’s sentence. The People were required to, at the very minimum, make such a request for defendant’s return. By deferring prosecution and choosing not to attempt to extradite defendant, the People ran the risk of a speedy trial violation.

The fact that a defendant is incarcerated outside of the state makes it incumbent upon the People to make diligent, good faith efforts to secure his presence in the state for arraignment and trial (see Hooey, 393 US 374, 383 [1969]). Where the defendant is incarcerated in another country, failing to make an extradition request has been one factor that courts have viewed as evidencing a lack of diligent efforts on the part of the prosecution in bringing defendant to trial promptly (see United States v Pomeroy, 822 F2d 718, 721-722 [8th Cir 1987]; United States v McConahy, 505 F2d 770, 773-774 [7th Cir 1974]). Of course, where the foreign country demonstrates its clear intention to deny an extradition request, the People are under no obligation to make a futile gesture. But nothing in this record demonstrates that a request here would have been futile, and thus this case differs from cases where an extradition request would clearly fall on deaf ears (see United States v Blanco, 861 F2d 773, 778 [2d Cir 1988] [Colombian government repeatedly refused to extradite Colombian nationals]; United States v Walton, 814 F2d 376, 379 [7th Cir 1987] [Swedish officials denied informal requests from the United States State Department to extradite the suspect]). An extradition request might have led to cooperation in securing defendant’s return to Suffolk County (see Pomeroy, 822 F2d at 721-722 [because it was at least possible that Canada would have honored an extradition request, the prosecution’s failure to make an extradition request evidenced a lack of diligent efforts to secure the defendant]).

The third factor applies to the underlying charges. Although this case involves the grave offense of murder, the level of offense does not trump a defendant’s right to a speedy trial. As we stated in Taranovich:

“Of course, this is not to say that one’s right to a speedy trial is dependent upon what one is charged with, but rather that the prosecutor may understandably be more thorough and precise in his preparation for the trial of a class C felony than he would be in prosecuting a misdemeanor” (37 NY2d at 446).

Here, the People do not claim that any delay was a result of time needed for pretrial preparation. The 12-to-19-year delay is entirely the result of defendant’s incarceration in Canada.

The fourth factor, whether there has been an extended period of pretrial incarceration, is not significant in this case. Defendant was initially detained on a warrant filed by the Canadian government. He has been held at all times thereafter pursuant to the Canadian charges, never on the Suffolk County indictment alone. At no point during his prosecution on the Suffolk County charges has he faced additional incarceration from those charges.

The fifth factor is whether or not there is any indication that the defense has been impaired by reason of the delay, such as difficulty in gathering evidence and locating witnesses (see Barker, 407 US at 532). Such concerns are exacerbated where the defendant is incarcerated in a foreign jurisdiction.

Here, it is highly likely that the defense was “impaired” (see Hooey, 393 US at 379-380) by defendant’s incarceration for many years in a foreign prison where it would have been difficult for him to participate in his own defense, confer with counsel and contact witnesses. Defendant claims that he had psychiatric problems and might have presented a defense based on a lack of criminal responsibility by reason of mental disease or defect. This type of defense would have required defendant to establish his mental incapacity at the time of the offense. The ability to do this was clearly hampered by his incarceration abroad.

We conclude that the Appellate Division properly balanced the Taranovich factors and that the prejudice caused by the postindictment delay, as a result of the People’s decision to allow defendant to be tried in Canada first and the subsequent decision not to seek defendant’s extradition to Suffolk County, violated defendant’s constitutional right to a speedy trial.

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

Judges Graffeo, Read, Smith, Pigott and Jones concur. Order affirmed.