author: Read, J.

text:
    [993 NE2d 386, 970 NYS2d 900]
    In the Matter of Chenango Forks Central School District, Appellant, v New York State Public Employment Relations Board et al., Respondents.
    Argued April 25, 2013;
    decided June 6, 2013

      POINTS OF COUNSEL

      Coughlin & Gerhart LLP, Endicott (Lars P. Mead of counsel), for appellant.
    I. The Public Employment Relations Board improperly refused to defer to the arbitrator’s finding that there was insufficient evidence of a binding past practice. (Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.],
      93 NY2d 132; Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326; Matter of Roma v Ruffo, 92 NY2d 489.) II. The Chenango Forks Teachers Association does not have a contractual right to continued Medicare Part B reimbursement; as such, the Public Employment Relations Board’s decision is based upon an error of law. (Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134.) III. The provision of Medicare Part B reimbursement to certain district retirees does not constitute a term and condition of employment; thus, the Public Employment Relations Board’s determination was based upon an error of law. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Chemical Workers v Pittsburgh Plate Glass Co., 404 US 157; Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326.) IV The Public Employment Relations Board erred in failing to find that the improper practice charge is moot, as the Chenango Forks Central School District and the Chenango Forks Teachers Association negotiated a new collective bargaining agreement which contains a “complete agreement” clause but does not provide for Medicare Part B benefits. V The Chenango Forks Central School District’s continued provision of Medicare Part B benefits would constitute an impermissible gift of public funds and the Public Employment Relations Board’s determination was based upon an error of law. (Piro v Bowen, 76 AD2d 392, 52 NY2d 702; Matter of Karp v North Country Community Coll., 258 AD2d 775.) VI. The Public Employment Relations Board’s decision is not based upon substantial evidence. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179; People ex rel. Vega v Smith, 66 NY2d 130.)

      David P. Quinn, Albany, for New York State Public Employment Relations Board, respondent.
    I. The Public Employment Relations Board was not arbitrary, capricious or affected by error of law in concluding that the reimbursement of Medicare Part B insurance premiums for active employees after they retire upon reaching age 65 is mandatorily negotiable under the Taylor Law. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122.) II. The Public Employment Relations Board was not arbitrary, capricious or affected by error of law in concluding that the Chenango Forks Central School District’s practice of reimbursing Medicare Part B insurance premiums for active employees after they retire upon reaching age 65 established a negotiable past practice cognizable under the Taylor Law. (Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231; Matter of Fashion Inst. of Tech. v New York State Pub. Empl. Relations Bd., 68 AD3d 605; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Bergstein v Board of Educ., Union Free School Dist. No. 1 of Towns of Ossining, New Castle & Yorktown, 34 NY2d 318; Matter of Gray v Adduci, 73 NY2d 741; Matter of Berenhaus v Ward, 70 NY2d 436.) III. The Public Employment Relations Board was not arbitrary, capricious or affected by error of law in concluding that it was not bound by the arbitrator’s opinion that the Chenango Forks Central School District had no binding past practice of reimbursing active employees for Medicare Part B premiums after they retire upon reaching age 65. (Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, Erie County Local 815, Erie County White Collar Empls. Unit v State of N.Y., Publ. Empl. Relations Bd., 213 AD2d 897; Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231; Board of Educ. for City School Dist. of City of Buffalo v Buffalo Teachers Fedn., 89 NY2d 370; Matter of Poughkeepsie Professional Firefighters’ Assn., Local 596, IAFF, AFL-CIO-CLC v New York State Pub. Empl. Relations Bd., 6 NY3d 514; Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; National Labor Relations Bd. v Owners Maintenance Corp., 581 F2d 44; Ciba-Geigy Pharms. Div. v National Labor Relations Bd., 722 F2d 1120; Mobil Exploration & Producing U.S., Inc. v National Labor Relations Bd., 200 F3d 230.) IV The Public Employment Relations Board was not arbitrary, capricious or affected by error of law in concluding that the record does not support the Chenango Forks Central School District’s affirmative defenses that it satisfied its duty to negotiate with the Chenango Forks Teachers Association concerning its announcement that it was terminating the at-issue practice or that the Association waived its bargaining rights concerning that announcement. (Matter of Ferreri v New York State Thruway Auth., 62 NY2d 855; Matter of Civil Serv. Empls. Assn. v Newman, 88 AD2d 685, 61 NY2d 1001; Matter of Monroe County v New York State Pub. Empl. Relations Bd., 85 AD3d 1439; Matter of Patrolmen’s Benevolent Assn. of Vil. of Walden v Kinsella, 263 AD2d 885; Matter of Greece Support Serv. Empls. Assn., NEA/ N.Y. v Public Empl. Relations Bd., 250 AD2d 980.)

      Richard E. Casagrande, Latham, for Chenango Forks Teachers Association, respondent.
    I. Judicial deference should be given to Public Employment Relations Board’s determination. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46.) II. The continuation of Medicare Part B reimbursement to current bargaining unit members who retire and reach age 65 is a mandatory subject of negotiation. (Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134; Matter of Baker v Board of Educ., 29 Misc 3d 706, 29 AD3d 574, 7 NY2d 708.) III. An enforceable Taylor Law past practice exists. (Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326; Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231; Matter of Fashion Inst. of Tech. v New York State Pub. Empl. Relations Bd., 68 AD3d 605; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of Roma v Ruffo, 92 NY2d 489; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321; Steelworkers v Enterprise Wheel & Car Corp., 363 US 593.) IV Substantial evidence supports the Public Employment Relations Board’s determination that the relevant history of reimbursing Medicare Part B insurance premiums constitutes a negotiable past practice. (Matter of Manhasset Union Free School Dist. v New York State Pub. Empl. Relations Bd., 61 AD3d 1231; Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v New York State Pub. Empl. Relations Bd., 301 AD2d 946; Matter of Uniondale Union Free School Dist. v Newman, 167 AD2d 475, 77 NY2d 809; Matter of Collins v Codd, 38 NY2d 269; Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v New York State Pub. Empl. Relations Bd., 2 AD3d 1197; Matter of Romaine v Cuevas, 305 AD2d 968; Matter of Bergstein v Board of Educ., Union Free School Dist. No. 1 of Towns of Ossining, New Castle & Yorktown, 34 NY2d 318; Matter of Gray v Adduci, 73 NY2d 741; Matter of JMH, Inc. v New York State Liq. Auth., 61 AD3d 1260.) V The Court should defer to the Public Employment Relations Board’s determination that the record does not establish that the Chenango Forks Central School District satisfied its duty to negotiate with the Chenango Forks Teachers Association or that the Association waived its bargaining rights. (Matter of Civil Serv. Empls. Assn. v Newman, 88 AD2d 685, 57 NY2d 775; Matter of Greece Support Serv. Empls. Assn., NEA/N.Y. v Public Empl. Relations Bd., 250 AD2d 980.) VI. The at-issue benefit is not an unconstitutional gift of public funds. (Gagliardo v Dinkins, 89 NY2d 62; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Matter of Fashion Inst. of Tech. v New York State Pub. Empl. Relations Bd., 68 AD3d 605.)
   OPINION OF THE COURT

Read, J.

On June 12, 2003, the Chenango Forks Central School District (the School District or the District) circulated a memorandum to its faculty and staff, represented by the Chenango Forks Teachers Association, NYSUT, AFT, AFL-CIO, Local 2651 (the Union), announcing termination, due to costs, of the District’s practice of reimbursing Medicare Part B premiums of retirees 65 years of age or older. The School District was at one time required by its health care insurance plan to reimburse these premiums. But in 1988, the parties negotiated a switch to a new plan, which was reflected in the collective bargaining agreement (CBA) they entered into in 1990. Although the new plan did not require provision of this benefit, the District nonetheless continued it. The 2001-2004 CBA, in place in June 2003, said nothing about Medicare Part B premium reimbursement. Similarly, the 2004-2007 CBA, entered into in January 2005, was silent on this issue, and the parties agree that the topic was not raised during contract negotiations.

The Union filed a contract grievance on July 24, 2003, claiming that the School District had violated the CBA by failing to negotiate cancellation of Medicare Part B premium reimbursement. And on September 12, 2003, the Union filed an improper practice charge with the New York State Public Employment Relations Board (PERB or the Board). There, the Union asserted that the District had violated the Public Employees’ Fair Employment Act (the Taylor Law), Civil Service Law § 209-a (1) (d), by unilaterally discontinuing Medicare Part B premium reimbursement. The Union characterized these reimbursements as a benefit that accrues to employees while they are employed, to be paid to them when they retire. On December 12, 2003, Administrative Law Judge (ALJ) Quinn, at the District’s request, conditionally dismissed the improper practice charge, subject to a motion to reopen. In light of the pending grievance, he noted, “it [was] PERB’s policy to refrain from asserting jurisdiction over the at-issue dispute until a determination is made as to whether the parties’ [CBA] provide[d] a source of right to the charging party.”

A hearing was held on the contract grievance in September 2004. In his opinion and award executed on November 6, 2004, the arbitrator concluded there was no language in the CBA requiring the School District to reimburse retirees’ Medicare Part B premiums, or clauses extending to matters not covered by the CBA or mandating maintenance of standards. As a result, he found “no basis in the [CBA] upon which to sustain the grievance.” In ruling that the District was not contractually obligated to reimburse Medicare Part B premiums, the arbitrator commented that he was

“mindful of the evidence regarding historical practices. As to Medicare Part B reimbursements, however, such practices originated from the former [health care plan] and a now repealed statutory obligation on the part of the District, and once the statutory obligation was removed, the District made voluntary Medicare Part B reimbursement payments to retirees. The voluntariness of the District’s conduct, given the origin of the District’s Medicare Part B reimbursements, does not contain sufficient evidence of a mutual understanding and agreement to establish a binding past practice” (emphasis added).

After the arbitrator’s decision was issued, the Union asked PERB to reopen the improper practice charge. On December 31, 2004, ALJ Quinn granted the Union’s request, over the School District’s opposition. He opined that because “the arbitrator found no [contractual] source of right to [the Union] with respect to the dispute at issue . . . , [the Union was] not seeking to enforce an agreement in the context of the charge, and PERB [had] jurisdiction over the alleged failure to continue a non-contractual practice.” ALJ Quinn transmitted the charge for reassignment to a decisional ALJ.

In a decision dated August 22, 2006, based on stipulated facts, ALJ Comenzo concluded that the School District had violated Civil Service Law § 209-a (1) by circulating the June 12, 2003 memorandum. She found that there existed a past practice of providing a benefit—i.e., the promise to reimburse current employees’ post-retirement Medicare Part B premiums—which is a mandatory subject of bargaining. Accordingly, the ALJ directed the District to rescind the memorandum.

In so ruling, ALJ Comenzo rejected several defenses advanced by the School District; in particular, that “the arbitrator’s finding that there [was] no past practice is binding” on PERB. In that regard, she noted that

“in addressing the [Union’s] grievance, the arbitrator specifically observed that his jurisdiction lay within the four corners of the [CBA], which, he found, contains no maintenance of standards clause to cover past practices. Thus, his opinion that there is no past practice concerning the at-issue benefit is entirely dicta, which is neither binding nor convincing.”

The School District filed exceptions, dated October 2, 2006, requesting that PERB rescind the ALJ’s decision. In its ensuing decision and order dated July 25, 2007, the Board focused on whether the District’s long-standing reimbursement of Medicare Part B premiums constituted a binding past practice within the meaning of the Taylor Law. The School District cited the arbitrator’s decision as proof there was no past practice; the Union pointed out that this benefit had been afforded employees since at least 1980. PERB endorsed the ALJ’s view that the arbitrator’s statement, relied upon by the District, was “entirely dicta” and “neither convincing nor binding.” The Board added that, to the extent the “arbitrator’s statement . . . may have been intended to apply the [Taylor Law’s] criteria for the establishment of a past practice, it was repugnant to [that statute]” (40 PERB ¶ 3012 [2007]).

PERB stated that the test for establishing a binding past practice under the Taylor Law was set out in its decision in Matter of County of Nassau (24 PERB ¶ 3029 [1991]); namely, that the “practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected [bargaining] unit employees that the [practice] would continue” (id. ¶ 3058). Further, “the expectation of the continuation of the practice is something that may be presumed from its duration with consideration of the specific circumstances under which the practice has existed.”

Applying the County of Nassau test to the facts, PERB found that the School District had actual or constructive knowledge of the practice, given the level of expenditure of revenue to multiple retirees (about $500,000 between 1988 and 2003), with such payments being documented in the District’s records and subject to review during the preparation of annual budgets. The Board added that, even without these circumstances, “the extended period of the practice alone . . . would have constituted circumstantial evidence sufficient to establish a prima facie proof of the employer’s knowledge.”

PERB decided, however, that it was unable to apply the “reasonable expectation” prong of the County of Nassau test because the stipulated record was inadequate. Specifically, the record was “ambiguous” regarding whether active employees and the Union had knowledge of the payments to retirees, and thus harbored a “reasonable expectation” that they would receive this benefit, too. Accordingly, the Board remanded the charge for the ALJ to take additional evidence and decide this issue.

On January 30, 2008, the School District and the Union participated in an evidentiary hearing before ALJ Comenzo. The Union presented 11 witnesses who were employees of the District and Union members; these witnesses generally testified that they had been aware of the Medicare Part B premium reimbursements prior to June 12, 2003 as a result of conversations with current and former colleagues. The School District’s two witnesses were responsible for conducting informal preretirement interviews with faculty and staff. Both testified that they did not recall anyone ever inquiring about reimbursement of Medicare Part B premiums.

In her decision dated May 7, 2009, the ALJ first reviewed and evaluated the testimony of each of these witnesses. She then found that

“[d] espite some weaknesses in the testimony of certain of the [Union’s] witnesses, the record credibly evidences that both the [Union], through some of its officials, and [bargaining] unit employees employed as of June 12, 2003, among them witnesses who testified at the instant hearing and those identified individually and collectively in the record testimony, had been aware of the at-issue reimbursement for many years prior to the June 12, 2003 memorandum. ”

The ALJ therefore confirmed her original ruling and order. On June 1, 2009, the School District again filed exceptions.

In its final decision and order dated April 22, 2010, PERB concluded that, based on

“examination of the record, including the testimony of [the School District’s witnesses], . . . the supplemental evidence presented by the [Union’s] witnesses is sufficient to resolve the ambiguity we found in the wording of the parties’ stipulation of facts. The evidence presented at the hearing demonstrates that both the [Union] and [bargaining] unit employees had sufficient knowledge of the District’s practice at the time of the announced discontinuation of that practice to demonstrate a reasonable expectation that the practice would continue” (43 PERB ¶ 3017 [2010]).

Thus, PERB denied the District’s exceptions, affirmed the ALJ and ordered the District to rescind the June 12, 2003 memorandum.

The School District commenced this CPLR article 78 proceeding by petition dated May 24, 2010, claiming that PERB’s determination was based upon an error of law, arbitrary and capricious and not supported by substantial evidence. In a memorandum and judgment decided and entered on May 10, 2012, the Appellate Division, with two Justices dissenting, confirmed PERB’s determination and dismissed the District’s petition (95 AD3d 1479 [3d Dept 2012]). The District appeals to us as of right, and we now affirm.

“As the agency charged with implementing the fundamental policies of the Taylor Law, [PERB] is presumed to have developed an expertise and judgment that requires us to accept” its decisions with respect to matters within its competence (see Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398, 404 [1979]). Our standard of review has been variously stated, but boils down to whether PERB’s decision was legally permissible, rational and thus not arbitrary and capricious (see id. at 402, 405; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). And where there has been a hearing, as happened here, PERB’s determination must be supported by substantial evidence (Pell, 34 NY2d at 231).

In this case, the School District takes the position that PERB should have deferred to the arbitrator’s finding there was no past practice, citing Matter of New York City Tr. Auth. (Bordansky) (4 PERB ¶ 3031 [1971]). In Bordansky, the Board subscribed to a policy of deferral to arbitral awards “under well defined standards,” stating that

“in order for [PERB] in an improper practice proceeding to defer to an arbitration award it must be satisfied that the issues raised by the improper practice charge were fully litigated in the arbitration proceeding, that arbitral proceedings were not tainted by unfairness or serious procedural irregularities [,] and that the determination of the arbitrator was not clearly repugnant to the purposes and policies of the [Taylor Law].”

Considering the facts of this case in light of the Bordansky factors, it was reasonable for PERB not to defer to the arbitrator: identity of issues was lacking and, to the extent the arbitrator purported to determine there was no past practice within the meaning of the Taylor Law, he exceeded his authority and his finding was repugnant to that statute.

First, any of the arbitrator’s findings relating to past practice within the meaning of the Taylor Law fell outside the scope of his authority. This conclusion is supported by the way in which the arbitrator himself portrayed his charge (see e.g. the arbitrator’s statement that he “approache[d] the Parties’ contractual interpretation dispute with the primary understanding that his jurisdiction [was] limited to and derived from the Parties’ Collective Bargaining Agreement . . . Accordingly, . . . Taylor Law obligations cannot alter this Arbitrator’s responsibility to render a decision based on the language contained in the Parties’ Agreement” [emphases added]). And as a matter of contract interpretation, the arbitrator’s pronouncement about past practice was dictum, as the ALJ and PERB correctly recognized. Past practice would only become relevant to the parties’ contractual rights and responsibilities if the CBA committed the School District to maintain existing benefits, and the arbitrator found it did not.

PERB additionally decided that any determination by the arbitrator with respect to past practice under the Taylor Law was repugnant to that statute. For example, the arbitrator opined that the voluntary nature of the payments, especially since they effectively originated as a mandate, meant there was no mutual understanding and agreement sufficient to establish a binding past practice. A binding past practice under the Taylor Law, however, does not require mutual understanding and agreement (see County of Nassau, discussed supra).

Finally, in our view the arbitrator did not, in fact, rule there was no past practice within the meaning of the Taylor Law. Instead, he merely stated that historical practices were insufficient to establish a contract right to reimbursement of Medicare Part B premiums. This is why he mentioned mutual understanding and agreement, a contract concept. In short, the arbitrator did not purport to decide the same issue as was litigated in the improper practice proceeding (see Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v New York State Pub. Empl. Relations Bd., 267 AD2d 935, 937 [1999] [PERB improperly relied upon its policy of deference as the sole basis for resolving an improper practice charge because the relevant inquiry in the prior disciplinary proceeding—whether there was cause for the employee’s dismissal—was “very different than” the inquiry in an improper practice proceeding, which was whether the employer’s action was motivated by anti-union bias, even if cause existed]).

Further, PERB’s decision in regard to past practice was supported by substantial evidence (see Pell, 34 NY2d at 231). The School District’s knowledge of the payments is shown by the managerial oversight necessary to make them, as well as the June 12, 2003 memorandum itself. The Union’s and bargaining unit employees’ knowledge was established by the testimony given at the hearing. The District protests that the testimony of the Union’s witnesses was incredible and consisted entirely of inadmissible hearsay; however, credibility determinations are the province of the ALJ, in the first instance, and PERB, not us. And the testimony was not hearsay because, as the Board observed in its final decision and order, “it relates to [the witnesses’] awareness of the practice, rather than the truth of the matter asserted” (43 PERB ¶ 3017). Moreover, the ALJ was not bound by the rules of evidence, and hearsay evidence may properly inform PERB’s decisions.

The School District also contends that continued Medicare Part B premium reimbursement absent a contractual requirement constitutes a gift of public funds and is therefore unconstitutional (see NY Const, art VIII, § 1). School districts may not “give or loan any money or property” (id.) unless “expressly authorized by statute, local law, resolution or pursuant to a contract term” (see Matter of Karp v North Country Community Coll., 258 AD2d 775, 775 [3d Dept 1999]). The statutory permission here comes from the definition of “terms and conditions of employment” (Civil Service Law § 201 [4]) and the bargaining right in certain binding past practices. The District simply presumes the conclusion for which it argues, as the reimbursement of Medicare Part B premiums can only be an unconstitutional gift of public funds if the Union has no right under the Taylor Law to such reimbursement.

We have examined the School District’s remaining arguments and likewise consider them to be without merit. Accordingly, the judgment of the Appellate Division should be affirmed, with costs.

Chief Judge Lippman and Judges Graffeo, Smith, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

Judgment affirmed, with costs.

      . The School District later stated this was an administrative oversight.

      . A “maintenance of standards” or “maintenance of benefits” clause in a labor contract requires all existing conditions of employment, except those specifically changed by the contract, to be continued during the term of a new contract. Such a clause effectively confirms past practices contractually (see Matter of Meegan v Brown, 81 AD3d 1403, 1404-1405 [4th Dept 2011]; see also Matter of City of Buffalo [Fire Dept.] [Buffalo Professional Firefighters Assn., Inc., Local 282, I.A.F.F., AFL-CIO], 17 PERB 11 3090 [1984] [noting that “a maintenance of benefits clause . . . may, with respect to a mandatory subject of negotiation, . . . create a contractual right that complements the statutory right to the maintenance of past practices. The contractual right, however, does not extinguish the statutory right”]).

      . The ALJ disregarded entirely the testimony of two of the Union’s witnesses because she concluded they had nothing relevant to say about the narrow issue on remand.

      . At the Appellate Division, the majority and the dissent disagreed on a question of law; namely, whether the School District adequately preserved the issue of whether PERB should have deferred to the arbitrator’s finding that a past practice did not exist. We conclude that the District preserved this issue for appellate review.


source: Caselaw Access Project

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

license: Public Domain

text:
    [992 NE2d 414, 970 NYS2d 486]
    The People of the State of New York, Respondent, v Kenneth Padilla, Appellant.
    Argued May 2, 2013;
    decided June 6, 2013

      POINTS OF COUNSEL

      Randall D. Unger, Bayside, for appellant.
    I. The People failed to establish that the police conducted a valid inventory search of appellant’s vehicle. The firearm seized during that search should therefore have been suppressed. (Katz v United States, 389 US 347; United States v Jeffers, 342 US 48; People v Sullivan, 29 NY2d 69; People v Johnson, 254 AD2d 500; Colorado v Bertine, 479 US 367; Florida v Wells, 495 US 1; People v Galak, 80 NY2d 715; People v Miles, 3 Misc 3d 566; United States v Duguay, 93 F3d 346; People v Schwing, 13 AD3d 725.) II. The People failed to prove appellant’s guilt beyond a reasonable doubt. (Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; People v Lemmons, 40 NY2d 505; People v Rivera, 77 AD2d 538; County Court of Ulster Cty. v Allen, 442 US 140; People v Ballard, 133 Misc 2d 584; People v Hicks, 138 AD2d 519, 71 NY2d 969; People v Wilt, 105 AD2d 1089; People v Olivo, 120 AD2d 466; People v Brown, 181 AD2d 1041.) III. Appellant was deprived of his due process right to a fair trial by the numerous, egregious improprieties committed by the trial prosecutor. (People v Steinhardt, 9 NY2d 267; Berger v United States, 295 US 78; People v Moye, 12 NY3d 743; People v Lovello, 1 NY2d 436; People v Bailey, 58 NY2d 272; People v Diaz, 170 AD2d 202; People v Butler, 185 AD2d 141; People v Paperno, 54 NY2d 294; People v Webb, 68 AD2d 331; People v Posner, 273 NY 184.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Matthew T. Murphy and Christopher P. Marinelli of counsel), for respondent.
    I. The hearing court properly denied defendant’s motion to suppress the gun. (Coolidge v New Hampshire, 403 US 443; People v Spinelli, 35 NY2d 77; Colorado v Bertine, 479 US 367; People v Grear, 232 AD2d 578; People v Johnson, 1 NY3d 252; People v Sullivan, 29 NY2d 69; United States v James Daniel Good Real Property, 510 US 43; County of Nassau v Canavan, 1 NY3d 134; Krimstock v Kelly, 306 F3d 40; People v Galak, 80 NY2d 715.) II. The People proved all elements of defendant’s crime beyond a reasonable doubt. (People v Bleakley, 69 NY2d 490; People v Tejeda, 73 NY2d 958; People v Kennedy, 47 NY2d 196; People v Romero, 7 NY3d 633; People v Gaimari, 176 NY 84; People v Saunders, 85 NY2d 339; People v Manini, 79 NY2d 561; People v Muhammad, 16 NY3d 184; People v Lemmons, 40 NY2d 505; People v Verez, 83 NY2d 921.) III. Nothing in the People’s summation or redirect examination of Officer Christopher White was improper. (People v Harris, 98 NY2d 452; People v Charleston, 56 NY2d 886; People v Balls, 69 NY2d 641; People v Tonge, 93 NY2d 838; People v Kello, 96 NY2d 740; People v Santiago, 52 NY2d 865; People v Halm, 81 NY2d 819; People v Galloway, 54 NY2d 396; People v Seit, 86 NY2d 92; People v Smith, 82 NY2d 731.)
   OPINION OF THE COURT

Pigott, J.

The issue on this appeal is whether the People met their burden of establishing a valid inventory search of defendant’s vehicle. We hold that they did.

On June 7, 2008, defendant was arrested for operating a motor vehicle while under the influence of alcohol. Pursuant to police protocol, defendant and his vehicle were taken to the police precinct. An officer conducted an inventory search of the vehicle, during which he recovered a loaded .357 Magnum revolver and ammunition. Defendant was charged with criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) in addition to operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [3]).

Prior to trial, defendant moved to suppress the weapon as a result of an illegal search. At the suppression hearing, the officer who conducted the inventory testified at length. He explained that it was custom and procedure for the police to impound a vehicle if the person arrested for driving while under the influence of alcohol is the registered owner. The officer, who had done “several, dozens” of inventory searches, testified that the purpose of the search was to inventory “everything” before the vehicle was taken to the impound lot.

Prior to completing the inventory, defendant’s sister, a police officer, arrived at the precinct and the officer released some of the items from defendant’s vehicle to her at her request. The officer recorded this in his memo book without specifically identifying each item. Defendant’s sister then signed the memo book. The officer admitted at the hearing that no authority exists for an officer to remove property from a vehicle and give it to a family member, but explained that it was customary for him, and the New York City police in general, to give family members property, as a courtesy, in similar circumstances.

A copy of the relevant pages of the New York City Police Department’s Patrol Guide was entered into evidence at the hearing. The officer explained that, pursuant to this procedure, the property recovered during the search that remained at the precinct was listed on a property voucher or in his memo book.

The officer then testified that, while searching the back seat, he noticed that panels were askew. He admitted that he looked into the panels because he was “looking for evidence of narcotics in a place where [he knew] criminals hid[ ] narcotics.” Nothing was found. When the officer opened the trunk, he found that audio speakers and an amplifier filled the entire cargo area, and he retrieved a screwdriver to remove the equipment. He testified that because the speakers were not “factory-issued” the vehicle would not be accepted at the impound facility unless they were removed. After removing the equipment, he checked the spare tire compartment where he found a black leather bag containing the gun and ammunition.

Supreme Court, finding the search to be valid, denied defendant’s motion to suppress (25 Misc 3d 1228[A], 2009 NY Slip Op 52332[U] [Sup Ct, NY County 2009]). Defendant was thereafter convicted, after a jury trial, of criminal possession in the second degree and sentence was imposed. The Appellate Division affirmed (89 AD3d 505 [1st Dept 2011]). A Judge of this Court granted defendant leave to appeal (19 NY3d 965 [2012]).

Defendant argues that the manner in which the officer conducted his inventory search was not proper and thus the entire search was invalid. He contends that the purpose of the search was not only to inventory its contents, but to search for contraband. He also claims that because the officer did not follow all the written standard procedures for conducting the inventory search, the entire search was illegal. We disagree.

Our jurisprudence in this area is clear. Following a lawful arrest of a driver of a vehicle that is required to be impounded, the police may conduct an inventory search of the vehicle. The search is “designed to properly catalogue the contents of the item searched” (People v Johnson, 1 NY3d 252, 256 [2003]). However, an inventory search must not be “a ruse for a general rummaging in order to discover incriminating evidence” (id.). To guard against this danger, the search must be conducted pursuant to an established procedure “clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably” (id., citing People v Galak, 80 NY2d 715, 719 [1993]). “While incriminating evidence may be a consequence of an inventory search, it should not be its purpose” (Johnson, 1 NY3d at 256). The People bear the burden of demonstrating the validity of the inventory search (see People v Gomez, 13 NY3d 6, 11 [2009]).

Here the People proffered written guidelines, the officer’s testimony regarding his search of the vehicle, and the resulting list of items retained. Although defendant takes issue with the officer’s removal of the speakers by arguing that such action was a ruse designed to search for drugs, the officer’s testimony that it was police protocol to remove any owner-installed equipment, was accepted by the hearing court and we perceive no grounds upon which to overturn that determination. Thus, the People met their burden of establishing that the search was in accordance with procedure and resulted in a meaningful inventory list.

The fact that the officer did not follow the written police procedure when he gave some of the contents of the vehicle to defendant’s sister without itemizing that property, did not invalidate the search. Notably, it was defendant himself who called his sister to come to the precinct to retrieve his property. The primary objectives of the search—to preserve the property of defendant, to protect the police from a claim of lost property and to protect the police and others from dangerous instruments—were met when the officer complied with defendant’s request and gave the items to his sister and then prepared a list of the other items retained by the police.

Finally, it is clear the officer’s intention for the search was to inventory the items in the vehicle. It was reasonable for the officer to check in the seat panels that were askew as part of his inventory. The fact that the officer knew that contraband is often hidden by criminals in the panels did not invalidate the entire search.

Having considered defendant’s remaining contentions, we find them without merit.

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

Rivera, J. (dissenting).

The officer’s search of a vehicle which involved intentional violations of the police department’s official vehicle inventory guidelines, the surrender of property from the vehicle to a third party in abrogation of those guidelines, the exclusion of that property from the official inventory list, and a warrantless search for narcotics, and which culminated in the complete physical disassembly of the contents of the trunk compartment, exceeded the bounds of a permissible warrantless search. I therefore dissent from the majority opinion’s conclusion that such conduct is permissible so long as part of an asserted “inventory” of an impounded vehicle.

It is well established that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions” (Katz v United States, 389 US 347, 357 [1967]; see also United States v Jeffers, 342 US 48, 51 [1951]). While an inventory search is an exception to the warrant requirement (see People v Sullivan, 29 NY2d 69, 77 [1971]), the term “inventory search” is not a euphemism for a fishing expedition for incriminating materials (see People v Johnson, 1 NY3d 252, 256 [2003]; People v Galak, 80 NY2d 715, 719 [1993]). For an inventory search to be valid it must “be conducted pursuant to ‘an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably’ ” (Johnson, 1 NY3d at 256, quoting Galak, 80 NY2d at 719). To protect against the conversion of a valid inventory search into a warrantless search, where police “rummag[e] in order to discover incriminating evidence” (Florida v Wells, 495 US 1, 4 [1990]), “[t]he procedure must be standardized so as to ‘limit the discretion of the officer in the field’ ” (Johnson, 1 NY3d at 256, quoting Galak, 80 NY2d at 719). Such cabining of the officer’s discretion ensures that “[a]n inventory search is exactly what its name suggests, a search designed to properly catalogue the contents of the item searched” (Johnson, 1 NY3d at 256).

Here, the officer conducting the search admitted that when he turned over some of defendant’s property to his sister, he did so without authorization, and in violation of the guidelines. Further, he admitted that he failed to properly inventory all of the items he released to her, also a violation of the guidelines, which require that the officer conducting the inventory “[r]emove all valuables from the vehicle and voucher on a separate PROPERTY CLERK’S INVOICE” (NY City Police Dept Patrol Guide Procedure No. 218-13 [“Inventory Searches of Automobiles and Other Property”] [hereinafter guidelines]). The guidelines could not be clearer, given this unmistakable directive to produce a list on a specified official form.

The officer not only violated the guidelines’ procedure for securing and listing property found in the vehicle, but he failed to create a meaningful inventory list—“the hallmark of an inventory search” (Johnson, 1 NY3d at 256). Although an inventory list may be meaningful even though not detailed (see e.g. People v Walker, 20 NY3d 122, 127 [2012]), it would defy logic to permit an officer to create an inventory list that explicitly excludes property turned over to a third party in contravention of official policy. It is one thing to summarize items, even in the most general of terms, and it is quite another to have a partial listing that intentionally excludes personal items removed in large bags from the vehicle and turned over to someone else. As we have stated previously, “[arbitrary decision-making about what to seize, no less than arbitrary decision-making about what to search, creates unacceptable risks of unreasonableness in an inventory search policy” (Galak, 80 NY2d at 721).

If the officer’s transgressions were limited to his violations of the guidelines by his release of defendant’s property to his sister, and the failure to list that property, then this exercise of unauthorized discretion might very well be insufficient support for defendant’s motion to suppress. However, there was other conduct which, along with this failure to comply with the guidelines, in my opinion, supports suppression.

Here, the officer admitted that his search for items to inventory transformed into a deliberate and typical warrantless search for drugs. The officer conducting the search testified, and the trial court found, that when he saw the vehicle’s seat panels were “askew” he specifically looked inside them for narcotics. Nothing in the record supports a conclusion that once the search for contraband in one section of the vehicle (the askew panels) proved fruitless, the search of any other section of the vehicle (i.e., the trunk) regained its status under the protective cover of a valid inventory. “While incriminating evidence may be a consequence of an inventory search, it should not be its purpose” (Johnson, 1 NY3d at 256).

Having failed to find any contraband in the interior of the vehicle during the admitted warrantless search, the officer then proceeded to search the trunk by fully disassembling its contents. This search of items attached to the vehicle’s interior casts further doubt on the inventory nature of the vehicle search. There is no dispute as to the condition of the trunk, its contents and the officer’s actions. The contents were described as speakers physically attached to the interior, large “[e]nough to take up the entire trunk space.” The officer admitted that in order to remove the speakers he had to unscrew them, disconnect them and remove the wiring, a process that required him leaving the vehicle to find a screwdriver, and which took time and effort to complete. The officer described this process as “laborious.” In other words, this was not a simple collection and removal of items for cataloguing purposes. Thus, the alleged “inventory” nature of the search of the remaining parts of the vehicle is questionable in light of the assiduousness of the officer’s deconstruction of the trunk, completed on the heels of his admitted search for narcotics in the interior of the vehicle.

As the majority notes, it is the People’s burden to demonstrate the validity of the inventory search (majority op at 272, citing People v Gomez, 13 NY3d 6, 11 [2009]). There is nothing in the record to support a finding that the officer here followed proper protocol in dismantling the trunk’s contents. The trial court found that the officer testified he removed the speakers because they were not an original part of the automobile and would not have been accepted by the pound. Where the officer admitted to a flagrant digression from the guidelines, conducted a warrantless search for drugs in the seat pockets, followed by a time-consuming disassembling of the trunk’s contents, I would require more than the officer’s statements that he was following protocol, or that the property would not be accepted at the pound. After all, the guidelines contemplate that some items may be left in the vehicle. Thus, his testimony and the written guidelines at least suggest that the officer did not have a full and correct understanding concerning items that could be left in the vehicle, and whether a full dismantling of an attached speaker system was permissible as part of the inventory.

Today’s decision has the potential to encourage officers to ignore established written police protocols, and use the opportunity provided by circumstances supporting a valid inventory search to instead exercise discretion in such a way as to convert a valid vehicle inventory into a constitutionally impermissible warrantless search. Therefore, I dissent.

Chief Judge Lippman and Judges Graffeo, Read and Smith concur with Judge Pigott; Judge Rivera dissents in an opinion; Judge Abdus-Salaam taking no part.

Order affirmed.

      . It is irrelevant that the officer released the property to defendant’s sister. Nothing in the facts suggest that by permitting his sister to take some of his property defendant waived protections afforded under the Constitution against warrantless searches.

      . The guidelines state that an officer may force open certain compartments, including the trunk, only if this can be accomplished with minimal damage, and also states that the officer may list “[plroperty of little value that is left inside the car,” in the officer’s activity log (NY City Police Dept Patrol Guide Procedure No. 218-13). Thus, it is not accurate that everything must be removed during the inventory.


text:
    [992 NE2d 1059, 970 NYS2d 716]
    The People of the State of New York, Respondent, v Grady Hampton, Appellant.
    Argued April 23, 2013;
    decided June 4, 2013

      POINTS OF COUNSEL

      Frankie & Gentile, P.C., Mineola (Joseph A. Gentile of counsel), for appellant.
    I. It was error and a violation of Judiciary Law § 21 for a substitute judge to adjudicate and decide a trial order of dismissal motion which had been argued and litigated before the original trial court judge who subsequently recused himself from the litigation. (Smith v State of New York, 214 NY 140; Evans v State of New York, 29 AD2d 611; Matter of Connelly-Logal v West, 272 AD2d 920; Gayle v Port Auth. of N.Y. & N.J., 6 AD3d 183; Michel v Michel, 31 AD2d 313; People v Cameron, 194 AD2d 438; State of New York v General Elec. Co., 215 AD2d 928; People v Hooper, 22 AD2d 1006; Clover-East

      Assoc. v Bachler, 23 AD2d 620; Morris-Imhoff v State of New York, 22 Misc 3d 545.) II. The testimony of Shamiquia Nelson is legally insufficient to support the conviction for homicide and weapons possession in this case. (People v Danielson, 9 NY3d 342; People v Brun, 58 AD3d 862; People v Acosta, 80 NY2d 665; People v Diaz, 201 AD2d 580; People v Carthrens, 171 AD2d 387; People v Garcia, 237 AD2d 42; People v Contes, 60 NY2d 620; People v Arroyo, 54 NY2d 567.)

      Kathleen M. Rice, District Attorney, Mineola (Barbara Kornblau, Tammy J. Smiley and Judith R. Sternberg of counsel), for respondent.
    I. To the extent defendant’s arguments concerning the legal sufficiency of the evidence were not raised during trial, they are unpreserved for review as a matter of law. In any event, the evidence was legally sufficient to prove defendant’s guilt beyond a reasonable doubt. (People v Hawkins, 11 NY3d 484; People v Hines, 97 NY2d 56; People v Gray, 86 NY2d 10; People v Santi, 3 NY3d 234; Jackson v Virginia, 443 US 307; People v Ramos, 19 NY3d 133; People v Bleakley, 69 NY2d 490; People v Malizia, 62 NY2d 755; People v Calabria, 3 NY3d 80; People v Jackson, 65 NY2d 265.) II. Defendant has waived and failed to preserve for review his argument that even purely legal issues may not be determined by a substitute judge. In any event, Judiciary Law § 21 did not preclude the substitute judge from ruling on purely legal matters raised in defendant’s CPL 330.30 motion. (People v Danielson, 9 NY3d 342; Cohen v Hallmark Cards, 45 NY2d 493; People v Brun, 58 AD3d 862; People v Spellman, 233 AD2d 254; People v Beecher, 225 AD2d 943; People v Turner, 212 AD2d 1000; People v Contes, 60 NY2d 620; People v Sabella, 35 NY2d 158; People v Carter, 63 NY2d 530; Gayle v Port Auth. of N.Y.& N.J., 6 AD3d 183.)
   OPINION OF THE COURT

Read, J.

We hold that Judiciary Law § 21 does not bar a substitute judge from deciding a question of law presented in a motion argued orally before another judge so long as a transcript or recording of the prior argument is available for review, and “the substitute indicates on the record the requisite familiarity with the proceedings and no undue prejudice occurs to the defendant or the People” (People v Thompson, 90 NY2d 615, 621 [1997]). Put another way, section 21 does not mandate a mistrial or that the pending motion be reargued orally in front of the substitute judge.

I.

On December 18, 2007, defendant Grady Hampton was at the house in Uniondale, New York where he lived with family members and his girlfriend of five years, Martinique (Nikki) G. After getting off from work at 4:00 p.m., Nikki returned to the house to get ready for her night school class at 5:45 p.m. She had intended to drive defendant’s car, but the tank was low on gas, and defendant would not give Nikki money to fill it up. In front of defendant, in the bedroom they shared, Nikki telephoned Kareem S. (Kareem), a friend since childhood. Cell phone records show this call was made at 4:57 p.m.

Nikki asked Kareem if he would give her a lift to her class, which he agreed to do. About a year before, while Nikki was dating defendant, she had engaged in a short-lived affair with Kareem. Defendant, who had heard rumors of this sexual relationship, left the room before Nikki finished the phone call. There was no love lost between defendant and Kareem; Nikki acknowledged they exchanged “dirty looks” when they encountered one another.

Kareem arrived in short order to pick up Nikki. There were two passengers in his car—his then girlfriend, Sharnae M. (Sharnae), who sat in the front passenger seat, and a friend, Joel D. (Joel), who sat in the backseat, directly behind Sharnae. Kareem parked across the street from defendant’s house; either shortly before or just after arriving, he called Nikki on his cell phone to alert her he was there. Cell phone records show this call was placed at 5:03 p.m.

Nikki walked across the street to Kareem’s car. Kareem removed his jacket and other items from the backseat to make room for Nikki and her belongings, which she placed there; he opened the trunk of the car. Meanwhile, Nikki walked back across the street to defendant’s parked car to retrieve her pocketbook. As she put the key into the car lock, she heard three or four gunshots and ducked down.

When the shooting stopped, Nikki saw Kareem staggering with his hands up before falling to the ground. Sharnae and Joel, who had remained inside Kareem’s car, also heard the gunshots. Joel heard Kareem say, “yo, yo, chill, chill” as he stumbled backwards. Through the rear window (the trunk was still open, narrowing his field of view), Joel glimpsed a tall, thin figure, dressed all in black, including a black hoodie, running away from the car. Later that evening, Sharnae, while seated in a police car, saw defendant walking down the street and into a house a few doors down from his own. He sported an Afro and was wearing a black hoodie.

Kareem was taken by ambulance to the hospital, where he was pronounced dead. He suffered gunshot wounds to the chest, back, and buttocks; the shots to his chest and back, both described as “lethal” by the medical examiner, perforated his heart and lungs. The chest wound was inflicted from a distance of an inch or less. Kareem was 19 years old.

Shamiquia N. (Shamiquia) saw defendant on the day of the shooting, both before and later, when he arrived at the house where she was living with her boyfriend and his family. This residence is located a few doors down from defendant’s house. Defendant had changed his appearance from earlier in the day by taking his cornrow braids out and styling his hair in an Afro. Shamiquia overheard defendant say that he shot Kareem because Nikki “tested his manhood,” and that he “put [the gun] in the woods.”

In the summer of 2008, defendant was arrested and charged with intentional murder (Penal Law § 125.25 [1]) for the killing of Kareem, and second-degree weapon possession (Penal Law § 265.03 [1] [b]; [3]) (two counts) in connection with this crime. After his arrest, defendant was interrogated by a police detective. When confronted with cell site records contradicting his account of when he left his house before the shooting and where he went, defendant changed his story. He also conceded that he knew that Kareem and Nikki “were having sex.” Further, in response to the detective’s comment that everyone makes mistakes, defendant replied that “sometimes people make big mistakes.” According to the detective, defendant’s eyes were watery and he put his head down in his hands. The detective took a break, during which defendant’s attorney called and further questioning ceased.

Defendant’s first trial resulted in a hung jury and mistrial; he was re-tried in September 2009 in a jury trial presided over by Supreme Court Justice Jerald S. Carter. After the close of the People’s case, defense counsel moved to dismiss the charges, arguing that defendant’s identity as the shooter had not been established. The People opposed the motion, and Justice Carter reserved decision. The defense then called five witnesses to testify in defendant’s behalf. These witnesses were family members and friends who disputed parts of Shamiquia’s testimony. At the close of all the proof, defense counsel again moved for a trial order of dismissal. The judge reserved decision, commenting that he harbored “concerns” about whether or not the People had met their burden.

The jury convicted defendant of the crimes charged. The following colloquy took place between the judge and defense counsel after the jurors left the courtroom:

“THE COURT: ... I know you may have a motion.
But do you want to make it now, or [do you] wish to put it on papers?
“[DEFENSE COUNSEL]: Regarding a trial order of dismissal that you reserved?
“THE COURT: I suggest that you put that on papers.
“[DEFENSE COUNSEL]: All right.”

The judge then set a date for sentencing.

After the jury verdict was handed down, an article about defendant’s conviction appeared in Long Island Newsday. As Justice Carter explained on the record at the previously scheduled sentencing hearing, this publicity prompted “a telephone call from an individual advising” him that Kareem, the victim, “was the nephew of a good friend of [his] and also a former associate minister of [his] church, which was unknown to [him] during the course of the trial.” Justice Carter immediately notified the attorneys of his discovery; he ultimately concluded that the “relationship [he had] with the uncle render[ed his] appearance in this case a conflict.” The judge noted there was a motion that defense counsel wished to file, and also “a further application . . . with respect to a mistrial, as to the fact that this case was tried, and now, because of the outstanding motion, apparently is not going to be decided by the judge who tried the case.” Justice Carter set dates for defendant’s motion and the People’s reply. On December 2, 2009, he issued an order recusing himself and referring the case to the supervising judge.

In the meantime, defense counsel filed a motion seeking an order granting his prior applications for a trial order of dismissal (CPL 290.10 [1]) or, alternatively, setting aside the jury verdict based upon lack of evidence (CPL 330.30 [1]). He also requested a mistrial “[s]hould the Judge actually recuse [himself] from deciding [this motion], which is [his] stated intent,” citing Judiciary Law § 21. This provision says that

“[a] judge other than a judge of the court of appeals, or of the appellate division of the supreme court, shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge” (Judiciary Law § 21).

Defense counsel took the position that because “[t]he issue before [the] Court . . . , although in writing now, was first argued orally before [Justice Carter] at the appropriate stages of the trial” and the written motion involved “issues of fact and credibilityt,] . . . only the Judge who heard and witnessed the testimony of the witnesses at the trial [could] rule on the factual and legal issues” presented.

The People opposed the motion. They argued that the evidence was legally sufficient and Judiciary Law § 21 did not foreclose a substitute judge from deciding the pending motion, which raised purely legal questions and did not permit determinations of credibility. In reply, defendant insisted that a trial judge must assess witness credibility when making a legal sufficiency determination. And since Justice Carter was unavailable to decide the pending motion on account of his recusal, defendant urged that a mistrial was the only option.

In a decision and order dated February 17, 2010, Acting Supreme Court Justice Daniel R. Palmieri, the judge to whom the case was reassigned, denied defendant’s motion (27 Misc 3d 492 [Sup Ct, Nassau County 2010]). As to the Judiciary Law claim, Justice Palmieri determined that, because a motion to set aside a verdict concerns only questions of law, a substitute judge familiar with the proceedings could decide it and, thus, a mistrial was not warranted. He declared that he had “read and become familiar with the entire record of the trial . . . submitted by the parties,” consisting of “the complete trial transcript, including all recorded colloquy, legal arguments and rulings” (id. at 495, 496). Upon applying the standard for assessing legal sufficiency to the evidence at hand, Justice Palmieri concluded that the People had presented a legally sufficient case to the jury that defendant committed the crimes for which he was convicted. He subsequently sentenced defendant to concurrent terms of imprisonment of 20 years to life on the murder conviction and 10 years on the gun possession convictions, to be followed by five years of postrelease supervision.

Defendant appealed, arguing that his conviction should be reversed and the indictment dismissed because the evidence was legally insufficient to prove his guilt. He also protested that he was entitled to a new trial because his original oral motion for a trial order of dismissal was argued before Justice Carter, and Judiciary Law § 21 barred any other judge from deciding the subsequently-filed written motion.

In a decision and order entered on June 21, 2011, the Appellate Division unanimously affirmed (85 AD3d 1055 [2d Dept 2011]). The court held that Judiciary Law § 21 did not prevent Justice Palmieri from deciding defendant’s motion because “ ‘purely legal questions were involved, all discussion was recorded in the minutes, and the successor Judge was not called upon to weigh conflicting testimony or assess credibility’ ” (85 AD3d at 1056, quoting Plunkett v Emergency Med. Serv. of N.Y. City, 234 AD2d 162, 163 [1996]). The Appellate Division further ruled that the evidence, viewed in the light most favorable to the prosecution, as was required, was legally sufficient to establish defendant’s guilt beyond a reasonable doubt, and that his conviction was not against the weight of the evidence. A Judge of this Court granted defendant leave to appeal (18 NY3d 924 [2012]), and we now affirm.

II.

In Thompson, a judge became incapacitated while presiding over a jury trial. When another judge was assigned to finish the trial, the defendant objected that Judiciary Law § 21 precluded this, and argued that a mistrial was therefore required. We concluded that Judiciary Law § 21

“does not prevent the substitution of a Judge in a jury trial since the ultimate determination of guilt or innocence belongs to the jury and not the Trial Judge.
“Generally, a Judge may be substituted for another ... as long as the substitute indicates on the record the requisite familiarity with the proceedings and no undue prejudice occurs to the defendant or the People” (90 NY2d at 621 [emphases added]).

There were no motions or decisions outstanding when the substitution was made in Thompson. At the time we handed down our decision, though, there was Appellate Division authority for applying Judiciary Law § 21 “not only to oral argument of motions, but to the taking of testimony” (People v Cameron, 194 AD2d 438, 438 [1st Dept 1993] [suppression motion], citing Michel v Michel, 31 AD2d 313 [4th Dept 1969] [support proceeding where the testimony was heard by two different judges]). Our decision implicitly accepts this premise, and interprets section 21 by looking at whether the replacement judge will be asked to make factual determinations, as opposed to reaching legal conclusions, and overall fairness.

This is the same general approach taken by the First Department in Plunkett. There, plaintiffs made an oral application to set aside a jury verdict, and the court directed the parties to brief and submit their positions for his consideration. The judge thereafter informally indicated that the motion should be denied, but he died before making a decision. On appeal, the First Department concluded that

“[i]n the circumstances presented, it was not error for the successor Judge to consider the motion to set aside the verdict. Since purely legal questions were involved, all discussion was recorded in the minutes, and the successor Judge was not called upon to weigh conflicting testimony or assess credibility, Judiciary Law § 21 would not preclude its reconsideration” (234 AD2d at 163).

The trial judge here relied on the rule articulated in Plunkett, which the Second Department adopted when affirming his decision. Plunkett is arguably at odds with language in the First Department’s earlier decision in Cameron (as defendant argues), although not the facts: in Cameron, the substitute judge was asked to decide an outstanding motion in a suppression hearing, where credibility determinations would have been involved. Moreover, in Weiss v City of New York (277 AD2d 36 [1st Dept 2000]), the First Department held that a judge assigned a case after the original judge retired should have decided a restored motion to reargue, citing Plunkett.

The Third and Fourth Departments have also considered section 21 in the context of motion practice. In State of New York v General Elec. Co. (215 AD2d 928 [3d Dept 1995]), the Third Department found the bar of section 21 applicable to a discovery motion decided by a successor judge on the papers after oral argument to his predecessor, who retired before deciding the motion. The court cited Cameron and Michel. The Fourth Department remitted for a new coram nobis hearing in People v Hooper (22 AD2d 1006 [4th Dept 1964]), and reversed in Clover-East Assoc. v Bachler (23 AD2d 620 [4th Dept 1965]), where the order appealed from denied an application to strike the case from the jury calendar and direct a nonjury trial. In People v Nenni (261 AD2d 900 [4th Dept 1999]), the judge who heard the defendant’s omnibus motion granted his request for a suppression hearing, but the successor judge later denied suppression without a hearing. The Fourth Department held that the first judge’s decision was law of the case and added that the successor judge, who was not present for oral argument, was prohibited from deciding the motion by virtue of Judiciary Law § 21, citing Cameron and Hooper. The court remitted for a suppression hearing.

In sum, this Court and the Appellate Divisions have rarely reversed on the basis of Judiciary Law § 21, or its predecessor statutes, in a case where a substitute trial judge decided a purely legal question. The other side of the coin is that the Appellate Division has remanded for further proceedings where the substitute judge was required to weigh conflicting testimony he did not hear or assess credibility of witnesses he did not view, as is the case, for example, with respect to a suppression motion. Finally, in Thompson we emphasized overall fairness. We specified that the substitute judge must have reviewed the record of the prior proceedings and substantiate that he did this, and that there could be no undue prejudice to the parties resulting from the substitution.

Looking at the facts of this case through the lens of Thompson and Plunkett, we conclude that Judiciary Law § 21 did not bar Justice Palmieri from ruling on the motion at issue. First, legal sufficiency presents a pure question of law; specifically,

“[a] verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt. A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof’ (People v Danielson, 9 NY3d 342, 349 [2007] [internal quotation marks and citations omitted]).

Questions of quality or the weight to be given to the proof are not to be considered in such an evaluation (see People v Sabella, 35 NY2d 158, 167 [1974]). This is also the case when deciding a motion to set aside the verdict (see People v Carter, 63 NY2d 530, 536-537 [1984]). Trial judges are prohibited from setting aside a verdict as against the weight of the evidence (id. at 536). This power is reserved to the Appellate Division, which essentially sits as a thirteenth juror (see Danielson, 9 NY3d at 348 [discussing the nature and parameters of the Appellate Division’s weight-of-the-evidence review]).

Next, Justice Palmieri made clear in his decision that he had reviewed and was familiar with the prior proceedings in the case. And, of course, he had the benefit of the parties’ motion papers, submitted after Justice Carter indicated his intention to recuse himself. Finally, defendant has shown no prejudice. It is not sufficient that Justice Carter may have expressed some reservations about the proof, leading defendant to speculate that Justice Carter might have issued a favorable ruling. Nothing in the Judiciary Law entitles a defendant to have a particular judge decide a motion.

III.

Reaching the merits of defendant’s motion, we conclude that legally sufficient evidence supports his convictions. Again, a legal sufficiency review requires evaluation of the evidence in the light most favorable to the People. We must assume that the jury credited the People’s witnesses and gave the prosecution’s evidence the full weight it might reasonably be accorded. Here, the testimony of Nikki, Sharnae, Joel, Shamiquia and the detective, as well as the cell site evidence, taken together, was legally sufficient to support defendant’s convictions for murder and weapon possession.

Defendant principally complains that Shamiquia’s testimony was incredible as a matter of law.

“Incredibility as a matter of law may result ‘[w]hen all of the evidence of guilt comes from a single prosecution witness who gives irreconcilable testimony pointing both to guilt and innocence,’ because in that event ‘the jury is left without basis, other than impermissible speculation, for its determination of either’ ” (see People v Calabria, 3 NY3d 80, 82 [2004], quoting People v Jackson, 65 NY2d 265, 272 [1985]).

But Shamiquia did not provide internally inconsistent testimony, and she was not the source of “all of the evidence of [defendant’s] guilt.” While her testimony differed in some respects from that of other witnesses (primarily defense witnesses), resolution of such inconsistencies is for the jury (Jackson, 65 NY2d at 272).

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

Chief Judge Lippman and Judges Graffeo, Smith, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

Order affirmed.

      . Cell site records also contradicted statements that Nikki made to the police tending to distance defendant from the crime.

      . The People contend that defendant did not preserve the argument he now makes that Judiciary Law § 21 prohibits a substitute judge from deciding questions argued orally before another judge, even where the issue in dispute is purely legal in nature. In fact, defendant did not state this basis for his objection in the trial court. Nonetheless, Justice Palmieri “expressly decided the question raised on appeal” in response to defendant’s objection (see CPL 470.05 [2]; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 470.05 at 10-11 [2009 ed], citing People v Hawkins, 11 NY3d 484 [2008] and People v Prado, 4 NY3d 725 [2004]).

      . Judiciary Law § 21 derives from statutes adopted in the mid-nineteenth century—i.e., in the days before oral arguments were routinely transcribed (much less recorded) (see generally McKinney’s Cons Laws of NY, Book 29, Judiciary Law § 21, Historical and Statutory Notes at 127). The legislature amended the law in 1850 to include an exception for arguments in the Court of Appeals (see Throop, Code of Civil Procedure, § 46 at 20 [1877]). This exception was subsequently expanded to cover the Appellate Division. Further, “the word ‘orally’ [was] added” to the statute as originally enacted “because taking part in the decision of a cause submitted [was] not within the [statute’s] intent” (id.).

      . To the extent defendant still argues that a trial judge must make factual and credibility determinations when deciding a trial order of dismissal, this is simply not correct.

      . We note that even if we had decided that Judiciary Law § 21 was violated in this case, the remedy would have been remittal for a new oral argument and decision at the trial level, subject to appellate review, not a mistrial as defendant contends.

        (n. cont’d)